covid-19: employment faqs for senior housing and care ... · 16 at regular rate up to $511/day and...
TRANSCRIPT
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.
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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
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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
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*Applies to employers with under 500 employees*Available April 1-December 31, 2020
“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
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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
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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
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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
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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.
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
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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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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
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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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How Tax Credits Work
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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
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
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Return to Work - Test-based strategy
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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
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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
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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)
Thank you! Questions? Comments?
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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