Angelo Spinola, a shareholder at Littler Mendelson, PC, has compiled guidelines for home care agencies when approaching some of the new programs that have been expanded or created by the federal response to the coronavirus outbreak. The following items are strictly guidelines, and not a substitute for legal advice.
Home Care/Home Health Clarification
One important caveat on the home health/home care analysis is that the FFCRA draft regulations are with the OMB right now so they will be issued very soon. That means a DOL clarification is unlikely in the near term.
While the inclusion of home health, and with it home care, in the DOL definition is a positive step, providers also need to be prepared for a legal challenge on that question until and unless it becomes crystal clear. Plaintiffs’ lawyers always seek to capitalize on any lack of clarity within the law and this will be no exception. That means that providers need to be apprised that there is still some risk and should be prepared.
Can Agencies Still Offer Paid Sick Leave and Get Financial Assistance to Help Pay for It?
It appears from the informal guidance from DOL that agencies can still get the selective benefit of the FFCRA should you choose. Blaze Knott at Littler is helping to develop a plan for home care agencies regarding this issue.
As you know, the guidance says that if you are deemed a “health care provider” your employees aren’t entitled to the leave. But even if you are a “health care provider” whose employees are not entitled to leave, an employer can get the tax credit if it nevertheless gives its employees paid sick leave. The DOL does not say it is an all or nothing exclusion/choice for an employer. The employer decides who to exclude.
Therefore, you should be able to offer the sick paid portion of the leave without also offering the child care portion of the leave, for example. Littler recommends that agencies create a policy and leave request forms and such that would be geared only towards paid sick leave while at the same time explaining that this is an elective benefit of the employer that is not mandated by the FFCRA that will serve this purpose and allow us to establish that the paid sick leave qualifies for the FFCRA tax credit.
The biggest concern right now for a lot of providers is the unemployment benefit available via CARES. In its current state, CARES appears to allow for this additional $600 regardless of State unemployment qualifications. This may change with advocacy, but currently the Act expressly provides for people who do not qualify under the state requirements.
So, despite the fact that the FFCRA likely exempts home care, caregivers could still effectively not show up due to child care issues and get paid more than they do now. Littler attorneys interpret Section 2101 of the CARES Act to say that if an individual is not eligible for unemployment benefits under state law, and they are not able to work due to child care needs, then they can receive pandemic unemployment assistance. If that is the case, and if a home care employer deems their employees not eligible for FFCRA benefits (and therefore not eligible for paid sick/family leave to care for their kids who are out of school), that employee arguably would be entitled to pandemic unemployment assistance even if they quit (rather than get laid off). If this is so, then this Act will have a very negative impact on the non-medical home care industry because these workers will make more money by quitting than working. Littler is examining this issue with the DOL and several key senators.
The CARES Act creates a temporary Pandemic Unemployment Assistance program through December 31, 2020 to provide payment to those not traditionally eligible for unemployment benefits (self-employed, independent contractors, those with limited work history, and others) who are unable to work as a direct result of the coronavirus public health emergency. Specifically, the CARES Act provides that a “covered individual” includes anyone who self-certifies that they are able and available to work but is unemployed or partially unemployed due to any of the following:
- Has been diagnosed with COVID-19 or is experiencing symptoms and seeking a medical diagnosis;
- A member of the individual’s household has been diagnosed with COVID-19;
- The individual is providing care for a family member or household member who has been diagnosed with COVID-19;
- The individual is the primary caregiver for a child or other person in the household who is unable to attend school or another facility as a direct result of COVID-19;
- The individual is unable to reach the place of employment because of a quarantine imposed as a direct result of COVID-19;
- The individual is unable to work because a health care provider has advised the individual to self-quarantine due to COVID-19 concerns;
- The individual was scheduled to commence employment and does not have a job or is unable to reach the job as a direct result of COVID-19;
- The individual has become the breadwinner or major support for a household because the head of household has died as a direct result of COVID-19;
- The individual has to quit their job as a direct result of COVID-19; or
- The individual’s place of employment is closed as a direct result of COVID-19.
The Secretary of Labor may establish additional eligibility criteria as well. Importantly, the law not only applies to employees, but also to those who are self-employed (independent contractors). Individuals are not eligible for benefits if they have the ability to telework with pay or are receiving paid sick leave or other paid leave benefits.
Other key features of the new unemployment benefits include:
- Benefits extended from 26 weeks (in most states) to 39 weeks.
- Benefits are payable for the period beginning on January 27, 2020, and end on December 31, 2020.
- The amount of benefits includes the amount that would be calculated under state law plus $600 per week for up to four months.
- Waiver of the usual one-week waiting period.
Additional benefits may also be available to those who exhaust their benefits. The CARES Act also provides funding to states for work share programs.