covid-19: employment faqs for senior housing and care ... · 16 at regular rate up to $511/day and...

Presented by:

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Christine ThelenMike KitsonGabi SanchezCarin Marney

COVID-19: Employment FAQs for Senior Housing

and Care Providers

©2020 Lane Powell PC

Disclaimer

These materials have been prepared by the law firm of Lane Powell for informational purposes only. They are not intended to be and should not be considered legal advice.

Transmission of the information is not intended to create, and receipt does not constitute, an attorney-client relationship. Recipients of these materials should not act upon this information without seeking professional counsel.

The information contained in this presentation is provided only as general information which may or may not reflect the most current legal developments. This information is not intended to constitute legal advice or to substitute for obtaining legal advice from competent, independent, legal counsel in the relevant jurisdiction.

2©2020 Lane Powell PC

Overview of the FFCRA Employment Provisions

Employer Exemptions Implementing Paid Sick Leave Implementing Extended FMLA Tax Credits Responding to COVID-19

Exposures

Today’s Agenda


Today’s presentation is based on the law, regulations and guidance issued on or before April 1, 2020

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Paid sick leave* Extended FMLA leave* Tax Credits* Expanded Unemployment Benefits

Overview of the FFCRA


*Applies to employers with under 500 employees*Available April 1-December 31, 2020

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Employer Exemptions


“Anyone employed at any doctor’s office, hospital, health care center, clinic, … nursing facility, retirement facility, nursing home, home health care provider, … or any similar institution, employer, or entity.”

Health Care Provider Exemption


Does this include Assisted Living? Not clearly articulated Yes, likely does cover AL

• AL in Oregon/Washington a “medical model” vs. “social model”

• Have licensed staff, provide healthcare in accordance with service plan and physician’s orders

• High Acuity residents

Retirement Facility


Does this include Independent Living or Senior Housing? Not clear, but use of word

“retirement” strongly suggests inclusion of IL

Why?• Retirement = 55+ housing • HOPA allows limitation to 55+• Serving vulnerable population

Retirement Facility


Does this include CCRCs/Life Planned Communities? Not specifically articulated Yes, likely includes all CCRC

levels (IL, AL, and SNF) Term, “retirement facility”

suggests a location where continuum of care provided

Retirement Facility


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Staffing Needs Internal Equity Safety

Cash Flow/Budget

Exclusion Consideration


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Less than 50 employees Limited to:

• Extended FMLA leave• Paid sick leave for school or place of care closure

Providing leave would “jeopardize the viability of the business as a going concern”

Small Employer Exemption


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Justifying Small Employer Exemption


An authorized officer of the business has determined that providing the leave would:

• Cause expenses and financial obligations exceeding available business revenue and cause the business to cease operating at a minimal capacity;

• Cause a substantial risk to the financial health or operational capabilities of the business because employees have specialized skills, knowledge, or responsibilities would take leave; or

• Create insufficient number of workers who are able, willing, and qualified, and available to perform the work that is needed for the business to operate at a minimal capacity.

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Implementing Paid Sick Leave


All employees Normally scheduled to work Unable to work or telework for a

qualifying reason

Employee Eligibility


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Subject to a Federal, State, or local quarantine or isolation order

Advised by a healthcare provider to self-quarantine

Experiencing symptoms of COVID-19 and seeking a medical diagnosis

Caring for an individual who is subject to quarantine or isolation order, or who has been advised to self-quarantine

Caring for their child, if the school or place of care has been closed, or the childcare provider is unavailable, due to COVID-19

Experiencing any other substantially similar COVID-19 condition defined by the U.S. Department of Health and Human Services

Paid Sick Leave Qualifying Reasons


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At regular rate up to $511/day and $5,110 total for:• Subject to a quarantine or isolation order

• Advised to self-quarantine

• Experiencing symptoms and seeking a medical diagnosis

At 2/3rds regular rate up to $200/day and $2,000 total:• Caring for individual subject to quarantine order or caring

for someone advised by health provider to self-quarantine

• Experiencing substantially-similar condition

• Caring for a child whose school or place of care is closed

Paying Sick Leave


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Amount and Use of Leave


Equivalent of two weeks For hours normally scheduled

to work In addition to other paid time

off provided Limits on intermittent use Beware of retaliation

Notice only after first day of paid sick leave

As soon as practicable

Employee Notice


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Documentation required• Name• Date(s) of leave • Qualifying reason for leave• Statement representing they are unable to

work or telework because of the qualifying reason

• Required documentation to support tax credits

• Additional information, depending on the qualifying reason

Employee choice Cannot require finding a replacement

worker

Administering Paid Sick Leave


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Implementing Extended FMLA Leave


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Employed 30 days or more Laid off on or after March 1,

2020, worked for the company at least 30 of the last 60 calendar days prior to being laid off, and rehired

Normally scheduled to work Unable to work or telework for

a qualifying reason

Employee Eligibility


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To care for a child under age 18, if the child’s school or place of care has been closed, or the paid childcare provider is unavailable, due to the COVID-19 public health emergency declared by a Federal, State, or local authority

Qualifying Reason


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First two weeks unpaid• Can choose to use paid sick time (or other paid time off) concurrently

Remaining leave paid at 2/3rds regular rate up to $200/day, and $10,000 total

Based on hours normally scheduled to work

Paying Extended FMLA Leave


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Up to 12 weeks of protected leave if the employee is unable to work Included in 12 weeks of FMLA leave Intermittent leave if employee and

employer agree

Amount and Use of Leave


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Documentation required• Same basic information as for paid sick leave

• Name of child being cared for• Name of school, place of care, or childcare provider that is closed

• Representation that no other suitable person will be caring for the child during the period of leave

Administering Expanded FMLA Leave


Employee notice as soon as practical• Oral notice and sufficient information for an employer to determine whether the requested leave is covered by the FFCRA

Health insurance benefits continue

Other FMLA provisions apply

Administering Expanded FMLA Leave


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Paid Sick Leave Oregon Family Leave Act Washington Paid Family

Leave Act Unemployment

Coordination with Other Leave


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Former position or a similar position, with equivalent pay, benefits, and other employment terms

No greater right to reinstatement than if they had been continuously employed

Job Protection


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Reinstatement not required if: Position no longer exists due to

COVID-19 No equivalent position is available Make reasonable efforts to notify

employee of any equivalent positions that becomes available within one year

Job Protection – Less than 25 Employees


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Tax Credits


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How Tax Credits Work


Credit for wages paid and cost of employer-provided health care

Applied through payroll tax process• Withhold from Social Security, Medicare, and federal income taxes

Refundable credit

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Responding to COVID-19 Exposures


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Self-quarantine until meets return-to-work criteria

Employee has symptoms


Self-quarantine until meets return-to-work criteria

Identify people employee came in direct and indirect contact with in 14 days before first symptoms and notify Identify work areas where

physically present and sanitize

Employee tests positive, or is suspected of having COVID-19


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Assess risk based on level of exposure using CDC Guidance High risk = 14 day self-quarantine/

daily monitoring Medium risk = 14 days quarantine/

daily monitoring Low risk = Self-monitoring with

supervision; asymptomatic employees can work

Employee is exposed to COVID-19


Return to Work - Test-based strategy


Resolution of fever without the use of fever-reducing medications

Improvement in respiratory symptoms (e.g., cough, shortness of breath)

Two negative test results collected ≥24 hours apart

Return to Work - Non-test-based strategy


At least 3 days (72 hours) since resolution of fever without the use of fever-reducing medications

Improvement in respiratory symptoms

At least 7 days have passed since symptoms first appeared

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Resources


Families First Coronavirus Response Act Webpage• FFCRA Regulations (published on April 1, 2020)• FFCRA Questions and Answers• Employee Rights Notice

CDC’s U.S. Guidance for Risk Assessment and Public Health Management of Healthcare Personnel with Potential Exposure in a Healthcare Setting to Patients with Coronavirus Disease (COVID-19)

CDC’s Criteria for Return to Work for Healthcare Personnel with Confirmed or Suspected COVID-19 (Interim Guidance)

https://www.dol.gov/agencies/whd/pandemic/ffcra-questions

https://www.cdc.gov/coronavirus/2019-ncov/healthcare-facilities/hcp-return-work.html



https://www.cdc.gov/coronavirus/2019-ncov/hcp/guidance-risk-assesment-hcp.html


Thank you! Questions? Comments?

©2020 Lane Powell PC 39

Panelists

Christine Thelen Counsel to the Firm [email protected] 503.778.2139

Mike Kitson Shareholder [email protected] 206.223.7081

Gabi Sanchez Senior Living & Long Term Care Team Co-Chair [email protected] 503.778.2172

Carin Marney Senior Living & Long Term Care Team Co-Chair [email protected] 206.223.7273

covid-19: employment faqs for senior housing and care ... · 16 at regular rate up to $511/day and...

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