Paid Leave – The Rules Are Going to Change!

September 01, 2020

If you search FFCRA in the VNPP Posts you will be able to track the brief history of the federal initiative for paid leave.  Recently, on August 10th, we shared notice of the Federal Court ruling striking down portions of the FFCRA.  Important in that ruling was that the Court objected to the definition of “health care provider” which is critical to our ability to opt out.  While some/many of you chose to utilize the EPSLA option (up to two weeks of paid leave for individuals who are ill or exposed) to encourage individuals who are sick or require quarantine to stay home, we think that most chose to opt out of the extended family leave to care for children at home from school.  Provider decisions to opt out are universally based on the inability to provide sufficient staff to meet the level of care needed at any given time.

• We have limited news on the Department of Labor’s efforts to respond to the Court Order; in other words, we are still in a wait and see mode.  We might expect that they may narrow the definition of those eligible for exclusion to direct care personnel not to include other agency staff, but as yet there is nothing definitive.
• However, also on the horizon, members of the Virginia General Assembly have also been looking for ways to guarantee leave during the time of the Emergency Order.  One bill, HB5116, which is similar in concept to SB5076 which was defeated in committee, will be heard in House Appropriations Committee. 
• HB5116 sounds good – but as we alluded to in our Update last week, the criteria for leave eligibility as well as pay is different from FFCRA, is extended to employers with fewer than 50 staff, and will not exclude health care providers which will make implementation not only complicated but, for a small provider, a significant cost to manage. While we may agree in principle, HB5116 will cause significant disruption and potential cost. 
• Look at the list of co-patrons on HB5116 – if your delegate is on the list, please send an email or text to express your opinion!