Throughout 2020, there have been a number of new laws and legal trends that could have major impacts on the in-home care industry. In order for providers to be successful in the long run, it’s important to remain abreast of the latest developments.
That was the message delivered by Angelo Spinola, an attorney and shareholder at Littler Mendelson, during this year’s National Association for Home Care & Hospice (NAHC) annual conference.
Among key legal developments, Spinola touched on the Families First Coronavirus Response Act (FFCRA), which creates paid leave — both sick leave and family medical leave — for employees who satisfy certain conditions.
When it comes to the FFCRA, the status of the health care provider exemption should be an area of interest to providers, according to Spinola.
When the law originally went into effect in April, the U.S. Department of Labor (DOL) created a broad exemption for health care providers.
“It certainly covered home health providers … and arguably covered most of the non-medical home care providers as well,” Spinola said. “What the [DOL] allowed companies to do, if you did meet the exemption, is exempt everybody within the entity, meaning it wasn’t specific to the employee. It’s whether the employer would qualify as a health care provider.”
Under the law, providers who qualified for the exemption could elect to not offer coverage to any of their employees, or they could offer partial coverage, such as paid sick leave, but not paid family medical leave.
“There were many home care agencies that were doing just that; they were offering the paid sick leave, but not the paid family medical leave,” Spinola said. “The reason for that decision is that companies were really concerned about losing caregivers for an extended period, for 12 weeks of time, because their children were out of school. [They were concerned about] not having anyone available to care for their clients.”
Recent rumblings in New York have caused confusion around what companies qualify for the exemption, however.
The state of New York issued a legal challenge to DOL regulations, effectively saying that the department exceeded its authority in making the health care provider exemption so broad.
Generally, the state of New York challenged four elements of the FFCRA regulations including the work availability requirement, the definition of health care provider, intermittent leave and the documentation requirement.
The state won on all grounds.
“What does this mean for you?” he said. “It means that if you were relying on a health care provider exemption to exclude coverage under the FFCRA, … there’s some risk to you for having relied on that exemption. You were relying on a broader exemption that has now been struck down.”
The DOL has since revised regulations, and providers need to determine whether their agency is subject to the FFCRA.
As far as other steps providers should take, it’s crucial to determine whether it’s in the company’s best interest to provide full or partial FFCRA benefits to all employees. Providers should also communicate with employees, as well as implement an arbitration program, according to Spinola.
Stimulus package, qualified immunity
The next coronavirus-related stimulus package remains top of mind for providers.
When it comes to advocacy initiatives, most providers had five key areas of focus.
These areas include increased pay for front-line workers to discourage many from going on unemployment, child care support for caregivers, priority access to personal protective equipment (PPE), qualified immunity and the creation of an “HCBS Direct Care Worker Fund.”
In May, House Democrats unveiled the Health and Economic Recovery Omnibus Emergency Solutions (HEROES) Act, a COVID-19 stimulus bill. The bill included most of the five industry initiatives except for qualified immunity.
Ultimately, the bill passed out of the house, but couldn’t pass in the Senate.
Another stimulus package, the Health, Economic Assistance, Liability Protection and Schools (HEALS) Act, was introduced in July. Out of five industry initiatives, the bill only included paid child care and qualified immunity. The legislation failed to pass out of the Senate.
“The problem that we are seeing is there’s no movement right now,” Spinola said. “They’re $2.5 trillion apart. There are significant differences between the two acts.”
While it’s impossible to say what will happen, Spinola pointed to the state of the economy as an indicator of the future.
“I think that what might happen is directly tied to the state of the economy,” he said. “We saw the economy really tank. We saw record unemployment claims. …I think we are seeing now because the economy is starting to rebound, there’s less pressure on Congress to create this stimulus package.”
As the election draws closer, there will be less focus on the stimulus bill.
“That’s concerning because that means a lot of the things that we were hoping to accomplish, … we might not get,” Spinola added.
In particular, if qualified immunity doesn’t pass, it puts the industry in a very vulnerable spot for litigation.
Overall, there have been at least 792 COVID‐related labor and employment lawsuits filed against employers, and more than 2,000 general COVID‐related lawsuits. More than 10% of these cases include class-action claims.
“Not surprising that since COVID hit, we’ve seen an increase in related cases,” Spinola said. “Each month, the number gets higher and higher, and we’re going to continue to see this. Unfortunately, we are seeing it specifically in the health care space.”
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