Category: Featured

On January 14, 2021, the U.S. Supreme Court in City of Chicago vs. Fulton reversed a Seventh Circuit ruling that the City of Chicago violated the automatic stay created by car owners’ bankruptcy filings, when the City refused to immediately return the cars after the bankruptcy filing that had been impounded pre-bankruptcy for parking or traffic violations. Put another way, if a creditor is in possession of assets they seized prior to the bankruptcy filing, they do not necessarily have to return the repossessed property.

This unanimous ruling by the Supreme Court “resolves” a dispute among the federal appellate courts on a very discrete issue under Section 362(a) of the Bankruptcy Code.

The Third, Tenth, and District of Columbia Circuits had determined that creditors who maintained possession of seized property are NOT violating the automatic stay. Contrary to those Circuits, the Second, Seventh, Eighth, Ninth, and Eleventh Circuits found that holding on to seized property is a prohibited “act to exercise control over property” of the bankruptcy estate and therefore violative of the stay.

Justice Alito delivered the unanimous opinion of the Court. He wrote that the “most natural reading” of the Bankruptcy Code is that it “prohibits affirmative acts that would disturb the status quo of estate property as of the time when the bankruptcy petition was filed.” He further stated that the act of merely retaining possession of the repossessed property does not violate the automatic stay.

Justice Sotomayor, in her concurring opinion, highlighted the fact that the Justices did not decide whether other sub-sections of Section 362 may still require a creditor to return repossessed debtor property if the creditor is holding it for the purpose of extracting payment. She wrote her concurring opinion to emphasize that despite this ruling, the Court is not deciding whether and when Section 362’s other provisions may require a creditor to return property to the bankruptcy estate or debtor. See 362(a)(4) and (6). She also pointed out that this Opinion did not provide guidance as to how bankruptcy courts should actually enforce the creditor’s separate obligation to deliver property back under other sections of the Bankruptcy Code, including Section 542. Importantly, Justice Sotomayor articulated her social concerns as to how low-income communities are disproportionately burdened in this regard, as well as communities of color. She points out how many debtors who are affected by this problem rely on their cars to go to and from work and that in order to get their car back, they must rely on procedures in bankruptcy court which are extremely slow (proceedings to enforce turnover of property under Section 542) and how it is up to the legislatures to address this issue.

This opinion is a “must read” especially for consumer practitioners who represent not only creditors but debtors concerning the ability to retrieve repossessed property. Importantly, the Supreme Court in this opinion did not rule on whether debtors could achieve their desired results by invoking other provisions of Section 362 or 542, leaving the door open to other possible avenues of recourse.

To discuss this topic or issues relating to creditors rights and bankruptcy, please contact Leslie Beth Baskin at 215-241-8926 or at lbaskin@sgrvlaw.com 

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Courts appeared to be split as to whether businesses are eligible for a Paycheck Protection Program (“PPP”) loan under the Coronavirus Aid, Relief and Economic Security Act (“CARES Act”) if you are a business in bankruptcy. The CARES Act was created to, inter alia, provide small businesses with loans under the PPP to keep their workforce employed. Uncertainty quickly arose as to whether businesses in bankruptcy were proper candidates for these loans. Neither the statute nor the initial regulation disqualified them, but the SBA later adopted an application form which specifically disqualified them. The SBA disqualification was under the rubric that business debtors pose an “unacceptably high risk for an authorized use of funds or non-payment of unforgiven loans.” Further, the SBA posits that the PPP loans fall under the category referred to as Section 7(a) loans which embody the standard of the loan being of “sound value or so secured as reasonable to assure repayment.”

Earlier this year, bankruptcy courts in Florida, Washington, New Mexico and Tennessee found debtor’s exclusion from eligibility from the SBA/PPP loans to be unlawful, determining that the exclusion of business debtors from PPP loans while in bankruptcy was “arbitrary and capricious” and a violation of 11 USC Section 525(a), which in essence provides that a government unit may not discriminate with respect to a request for a grant based solely on the fact that they are a bankruptcy debtor. Other bankruptcy courts, such as in Delaware, New York, Maryland, Georgia and Maine, have found to the contrary and upheld the SBA’s position determining that business debtors are ineligible.  Most recent rulings have sided with the SBA’s position that such businesses are ineligible for a loan, noting that while the bankruptcy exclusion may be harsh, it is within the SBA’s authority. For example, see In re Cosi, Inc. Case # 20-10417 ( Bankr. D. Del. April 30, 2020)

On December 22, 2020, a three-judge panel in the 11th U.S. Circuit Court overturned a Bankruptcy Court ruling and upheld the SBA rule that makes bankruptcy business debtors ineligible for the PPP loans. See Gateway Radiology Consultants, P.A. , No. 20-13462 (11th Cir.), wherein the 11th Circuit overruled the Bankruptcy Court which had found that the SBA was “arbitrary and capricious” in exceeding its authority by disqualifying businesses in bankruptcy proceedings from PPP availability. The 11th Circuit now joins the 5th Circuit in finding that the SBA does not exceed its authority in declining to grant PPP loans to business debtors. ( In re Hidalgo County Emergency Service Foundation, 962 F.3d 838 ( 5th Cir. 2020)).

On December 27, 2020, President Trump signed the Bipartisan-Bicameral Omnibus COVID Relief Deal, which temporarily amended the bankruptcy code to allow PPP loans to some business debtors, but with the caveat that this change only would become effective if the SBA agrees to allow PPP loans in bankruptcy. Query as to whether this amendment changes the status quo on this issue at all, and why the SBA would do a 180 turn at this juncture.

To avoid the denial of a PPP loan, some businesses who otherwise would need bankruptcy protection have chosen to not file for bankruptcy relief at all, or once in a bankruptcy dismiss their bankruptcy to pursue PPP loans. Questions to ponder here are: whether a debtor who receives a PPP loan and then files for bankruptcy protection (as part of a pre-ordained plan) must disgorge the PPP loan, whether PPP loans received prior to a bankruptcy filing may be used as cash collateral in a later bankruptcy filing for purposes other than those allowed under SBA guidelines, the commingling of PPP loan funds with other bankruptcy proceeds, etc.

To discuss issues regarding PPP loans, creditors rights and bankruptcy or business workouts, please contact Leslie Beth Baskin, Esquire at 215-241-8926 or at lbaskin@sgrvlaw.com.

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We are a “get’er done” society. We embrace challenges – and applaud those who complete them promptly. Nothing exemplifies that attitude more than creating not one, but two COVID-19 vaccines, in less than a year. Another example has been funding relief for America’s businesses shuttered by the Pandemic.

From the $2.2 trillion CARES Act funding quickly passed in April, to the tentative deal for “just” $900 billion in the pending bill, our leaders have acted quickly to try to help our citizens and businesses get back on their feet, after a knockout punch no one saw coming.

But sometimes done is not “better than perfect”?

The aphorism about the benefits of completing a task, rather than obsessing over the failure to “dot i’s and cross t’s”, falls down when the “i’s and t’s” turn out to be just as important in the long run as the completed task.

The 5,593 page Consolidated Appropriations Act 2021 left out liability protection for employers, schools and businesses, despite many calls for such relief. A similar liability limit bill was vetoed in my state, Pennsylvania, for protecting even firms that ignored public safety requirements. Why should such concerns matter so much, when balanced against the overwhelming demand for speedy relief, both financial and legal?

Consider the tragedies of Pennsylvania meat plant employees, who died of COVID-19 early in the Pandemic, and of their employers who were sued for failing to prevent their deaths. Other similar cases have been reported, particularly for health care workers. While the facts will be determined in the litigation, the allegations are predictable. The employers claim that employees were infected even though they had protective equipment. If the employers complied with all applicable safety rules, at the time, what more could they have done?

Why should an employer pay for an illness it couldn’t prevent, even though it tried, using all of the public health guidance available? Of course, those rules have evolved as science has learned more about the virus. But no one wants to hold employers to a standard they couldn’t have known at the time of the alleged violation.

Or do they?

Whether due to adverse publicity, a genuine desire to compensate the family of a fallen employee, or a cold, liability carrier’s cost benefit analysis of the expense of settlement against the slow burn of legal fees, counsel for an injured or deceased employee will often invest in lengthy litigation, in search of a large award.

It is easy to understand why the possibility of future lawsuits became less pressing to lawmakers than the actual needs of individuals and businesses alike for cash, whether to pay bills, or simply to stay alive in the hope for a “new post-vaccine normal”. Yet the cost of defending claims for harm allegedly caused by COVID-19, both spurious and legitimate, could be overwhelming – especially after businesses have already invested heavily in personal protective equipment and facilities modifications to try to stop the spread of the disease.

Moreover, keeping up with the flood of safety guidance from many sources during the Pandemic, especially as it has evolved with understanding of the virus, has been a challenge for those focusing on that question, much less for a business owner struggling to stay open and pay employees.

From a different perspective, will anyone remember the cash stimulus benefits after paying legal fees to defend claims from injured or deceased employees? If the philosophy of our relief efforts has been “no questions asked” compensation for businesses harmed by the virus, should funding for its human victims perhaps have been included as well?  After all, our society does compensate some harms without fault, such as auto accidents (in some states), or injuries caused by vaccines.

Such a compensation system would not multiply the tragedy of an employee death from COVID-19 to include the collapse of the firm that could not prevent it, especially if the employer tried to protect its employees under all safety guidelines.

(Of course, employers which cavalierly ignore safety rules should not get any liability protection.)

To paraphrase Martin Luther King, no one is healed until we are all healed, individuals and businesses alike. When Congress returns in January, balanced COVID-19 liability limitation should be as high on its agenda as stimulus checks for individuals.

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Spector Gadon Rosen Vinci P.C. Managing Member Daniel J. Dugan has successfully brought to a close a situation weighing on a Montgomery County, Pa. country club following a sheriff sale action that formalizes lender ownership of the 115-acre property.

The sheriff sale was an effort to dispose of any outstanding claims and debts, and remove any leins, against Lulu Country Club, which is located in Glenside and features an 18-hole Donald Ross-designed golf course.  It also formalizes ownership of the property by lender LT-Lulu LP, which is represented by Dugan.

“All of the claims and debts are wiped out and LT-Lulu will continue to operate the club,” said Dugan. “From a members point of view, it will be a seamless transition.”

The underlying real estate tied to the club did not sell at a Dec. 2 auction arranged by the Montgomery County Sheriff’s office, for which a $14.98 million minimum bid price was set — the amount of debt on the property.  No bids were made to buy it at the auction.  It was the first time the Montgomery County Sheriff’s Office sought to hold its property sales online.

LT-Lulu now becomes the owner, which will be finalized when it receives the deed by January 2021.

Mortgage foreclosure proceedings led to Lulu Country Club’s situation.  The original lender to the club was Summit Bridge National Investments. It initiated and obtained a mortgage foreclosure in Montgomery County Court of Common Pleas in March 2015 when the club was struggling and defaulted on payments.

A limited liability corporation and LT-Lulu, which is a related entity, purchased from Summit Bridge the underlying mortgage, note and judgment and pursued the sheriff sale as part of the transfer process.

The club, which was chartered in 1912, is thriving and is one of the few in the region to have a waiting list for new members.

Lulu JJR LLC has a 20-year lease on the property and will continue its role overseeing management of the club and its operations.

Dugan has been in practice since 1977, with Spector Gadon Rosen Vinci since 1982, and a member of the firm since 1987.  He is managing member and also a member of the firm’s Executive Committee.  He concentrates his practice in trials and appeals involving all manner of commercial and business disputes, and he has extensive experience litigating before state and federal courts nationwide, including bankruptcy courts and Orphans Court.

Spector Gadon Rosen Vinci P.C. has represented clients nationally and internationally for 45 years and provides counsel and expertise across the entire spectrum of legal practice, from complex litigation to sophisticated transactional and corporate matters. The firm has offices in Philadelphia, New Jersey, Florida, New York and Atlanta.

The firm represents businesses, corporate boards, and highly placed individuals. Its clients are engaged in a variety of industries including finance and banking, manufacturing, hospitality, gaming and entertainment, real estate and commercial development, insurance and venture capital, energy, financial services, health care, security and telecommunications.

The firm’s practice areas include high stakes litigation, business disputes, commercial litigation, professional liability, products liability, securities, trust and estates, fiduciary litigation, bankruptcy and creditors rights, civil RICO, trade secrets, trademark and restrictive covenants, intellectual property, antitrust, white-collar criminal defense, banking and financial services, corporate formation and governance, cyber risk and security, employment, entertainment and amusements, environment and energy, wealth management, healthcare, hospitality, insurance coverage and insured casualty litigation, mergers, acquisitions and divestitures, real estate, sports and tax law.

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Spector Gadon Rosen Vinci P.C. (SGRV) is pleased to announce that Madison G. Melinek has joined the firm as an Associate in the firm’s Insurance and Casualty Litigation Practice Groups. Her practice includes commercial litigation, including insurance and casualty litigation, and matters involving the defense of amusement parks and product liability defense. Melinek frequently provides corporate assistance to amusement venues, including preparation and review of leases, ride purchase contracts, concession agreements, and other contracts.

Prior to joining the Philadelphia office, Melinek litigated insurance defense matters, providing counsel and representation to insurance clients on all aspects of the claims process, including complex coverage, and bad faith disputes. This included the preparation of coverage opinions, analysis of state-specific laws, and associated litigation.

Melinek has clerked for the Honorable Judge Baratta, in Northampton County, which included assisting the Judge on drafting a number of rulings over a variety of cases, including complex commercial litigation, criminal law and family and divorce law. Melinek presided over a number of intricate insurance disputes, graphic criminal cases, and was responsible for relaying attorney concerns and pre-trial matters to the Judge.

Melinek received her B.A., with honors, in Political Science and History from The Ohio State University in 2015, and her J.D. from Case Western Reserve University School of Law in 2018. She is admitted to practice law in Pennsylvania, New Jersey, the District of Columbia, and the U.S. District Court for the Eastern, Western, and Middle Districts of Pennsylvania.

Melinek is a member of the Defense Research Institute, a Temporary Board Member and Volunteer at the Support Center for Child Advocacy, and a member of the Pennsylvania, Philadelphia, and American Bar Associations.

Spector Gadon Rosen Vinci P.C. has represented clients nationally and internationally for 45 years and provides counsel and expertise across the entire spectrum of legal practice, from complex litigation to sophisticated transactional and corporate matters. The firm has offices in Philadelphia, New Jersey, Florida, New York and Atlanta.

The firm represents businesses, corporate boards, and highly placed individuals. Its clients are engaged in a variety of industries including finance and banking, manufacturing, hospitality, gaming and entertainment, real estate and commercial development, insurance and venture capital, energy, financial services, health care, security and telecommunications.

The firm’s practice areas include high stakes litigation, business disputes, commercial litigation, professional liability, products liability, securities, trust and estates, fiduciary litigation, bankruptcy and creditors rights, civil RICO, trade secrets, trademark and restrictive covenants, intellectual property, antitrust, white-collar criminal defense, banking and financial services, corporate formation and governance, cyber risk and security, employment, entertainment and amusements, environment and energy, wealth management, healthcare, hospitality, insurance coverage and insured casualty litigation, mergers, acquisitions and divestitures, real estate, sports and tax law.

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As a result of recent amendments to the Internal Revenue Code, fewer taxpayers get a bang for bucks donated to charitable organizations. Except… Buried in the debris of frenzied responses to the scourge of COVID-19, a glimmer of light. Whether or not you itemize, cash gifts of up to $300 (in the aggregate) to qualifying charitable organizations made before December 31, 2020, are deductible in determining your 2020 tax bill, period, end of thought. No less an authority than the IRS has just sent out a reminder. (Do you suppose this means they have a beating heart? Nah.)

The reduction in tax may not change your life, but from the point of view of many smaller charitable organizations, truly every little bit helps. If you are stuck, any of us at SGRV could suggest a worthy recipient of your smallish but still important largesse.  Certainly everyone should try to scrape together $300 to take advantage of this (relatively) tax freebie.

For those one in ten of you who still itemize deductions, there is another tax saving opportunity. Under the CARES Act there is a suspension of the normal rule that charitable contributions for the year may not exceed 60% of adjusted gross income. For 2020 the limitation is 100% of AGI, with (as under prior law) a 5 year carryover for excess gifts. As in the provision above, this higher limit only applies to cash gifts. So, are you a potential donor who might be induced to jump at a larger cash gift this year, wipe out your tax liability and maybe have some carryover to boot? If you otherwise have the disposable cash, it may just be a question of hating the IRS as much as (or more than) you love your favorite charity.

As in all things tax, it is important to get advice on your particular circumstances from your return preparer, CPA, or financial adviser. Morgan Maxwell, our Of Counsel for tax matters, can also be helpful.

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Spector Gadon Rosen Vinci P.C. Chairman Paul R. Rosen, Esq. was honored with a Lifetime Achievement Award by The Legal Intelligencer, the oldest law journal in the United States, as part of the publication’s 2020 Pennsylvania Legal Awards on Wednesday, Nov. 11.

The Lifetime Achievement Award honors jurists, office holders and other legal luminaries from across Pennsylvania who have left an imprint on the legal history of the state during their career.

Rosen has distinguished himself throughout his 55-year career through multiple landmark cases.

He is known for his work in the area of lender liability, beginning with a $5 million precedent-setting verdict in favor of a borrower who brought a counterclaim against its lender during a foreclosure action.  His verdict against a bank ultimately created the Lender Liability Law.

In Pennsylvania, Rosen attracted significant attention for his representation of the Commissioners of Lower Merion Township in Barnes Foundation v. Township of Lower Merion, a civil rights action; and of Bruce Marks in the Marks v. Stinson voting fraud case. He was the subject of national attention for his representation of Alycia Lane in her invasion of privacy litigation against CBS and claims of criminal unauthorized access to her private computer system involving CBS Co-Anchor, Lawrence Mendte. He waged a 10-year battle that went to the Pennsylvania Supreme Court in which recusal of the entire Montgomery County Bench was at issue.

Rosen won a class action lawsuit against One Meridian Plaza after the devastating fire.  His class action suit against the union practice of tagging (using license plates in parking lots to track down potential new members) made the front page of the Wall Street Journal and changed U.S. law.  After children were allowed into the sexually explicit movie “Private Lessons,” Rosen sued BudCo Theaters to enforce their ratings, creating the PG-13 era.  He has also represented former CNN host Larry King in a First Amendment matter; former Philadelphia Eagles Coach Andy Reid and his family; and Tom Knox in the Brady challenge for mayor.  Most recently, he returned the Barbera Autoland Dealership to its founding family.

“Early on, I realized I had a talent for finding solutions to impossible problems,” Rosen recently told The Philadelphia Inquirer.  “Growing up on the multicultural streets of Camden, I had to hold my own at Camden High — not just scholastically, but in everyday living.  These life experiences gave me the grit to become a fierce advocate and problem-solver for others — and propelled me into the practice of law.”

In addition to his legal portfolio, Rosen is a champion of the arts, serving as Chairman of the Spector Gadon Rosen Vinci Foundation which provides grants to Philadelphia artists and arts organizations, and presents the ATTY Award for positive depictions of attorneys in the arts.

Rosen is intimately involved in the Philadelphia community. He is a patron of the Cancer Support Community of Greater Philadelphia; Friends of Rittenhouse Square; Pennsylvania SPCA; and numerous other civic/community and fundraising activities.

Spector Gadon Rosen Vinci LLP has represented clients nationally and internationally for 45 years and provides counsel and expertise across the entire spectrum of legal practice, from complex litigation to sophisticated transactional and corporate matters.  The firm has offices in Philadelphia, New Jersey, Florida, New York and Atlanta.

The firm represents businesses, corporate boards, and highly placed individuals.  Its clients are engaged in a variety of industries including finance and banking, manufacturing, hospitality, gaming and entertainment, real estate and commercial development, insurance and venture capital, energy, financial services, health care, security and telecommunications.

The firm’s practice areas include high stakes litigation, business disputes, commercial litigation, professional liability, products liability, securities, trust and estates, fiduciary litigation, bankruptcy and creditors rights, civil RICO, trade secrets, trademark and restrictive covenants, intellectual property, antitrust, white-collar criminal defense, banking and financial services, corporate formation and governance, cyber risk and security, employment, entertainment and amusements, environment and energy, wealth management, healthcare, hospitality, insurance coverage and insured casualty litigation, mergers, acquisitions and divestitures, real estate, sports and tax law.

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In August 2020, a federal court in New York struck down several parts of the Department of Labor’s (“DOL”) Final Rule providing guidance to employers and employees on the scope of the Family First Coronavirus Response Act (“Family First Act”). The decision of the United States District Court for the Southern District of New York struck down: (1) the Rule’s requirement that work must be available before the employer is required to provide paid sick leave; (2) the Rule’s definition of “health care provider”; (3) the requirement that an employer consent to an employee’s use of intermittent leave; and (4) the requirement that an employee provide appropriate documentation prior to taking Family First Act leave. As expected, the DOL has issued revised Regulations to address the issues raised in the New York decision, changing some of the prior requirements and keeping others with additional explanation or clarification.
 
The Family First Act, which is in effect through the end of 2020, requires employers with 500 or fewer employees to provide at least 80 hours of paid sick leave to any employee who:
  1. is subject to a federal, state, or local quarantine or isolation order related to COVID–19;
  2. has been advised by a health care provider to self-quarantine due to concerns related to COVID-19;
  3. is experiencing symptoms of COVID-19 and seeking a medical diagnosis;
  4. is caring for an individual who is subject to an order as described in subparagraph (1) or has been advised as described in paragraph (2) (at 2/3 pay); or
  5. is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.
 
The Family First Act also provided up to 10 weeks of paid leave at 2/3 pay (after 2 unpaid weeks) for employees who must care for their child because the child’s school or place of care has been closed, or the child’s childcare provider is unavailable, due to COVID-19 precautions. 
 
Work Availability
 
The DOL’s final Rule clarified that the paid leave provisions did not entitle an employee to paid leave “where the Employer does not have work for the Employee.” The New York court found that this qualification was not included in the Family First Act itself and, therefore, the DOL exceeded its authority when it added the qualification. Under the court’s ruling, an employee who otherwise qualifies for Family First Act leave would be entitled to that leave even if his or her employer is closed or the employee has been furloughed or laid off due to Covid-19 restrictions. 
 
In its revised Regulations, the DOL retained the qualification that, before a leave is payable, work must otherwise be available. The revised Regulations specifically rely on longstanding FMLA regulations making it clear that periods of time when the employee would not otherwise be expected to work may not be counted as part of the employee’s FMLA leave entitlement. The revised Regulations also rely on the wording of the Family First Act that the leave must be “because of” or “due to” one of the six reasons listed in that act, which the revised Regulations interpret as a requirement that one of the six reasons listed in the Family First Act be the “but for” reason for the leave. The revised Regulations also specifically noted that requiring employers who were not paying other employees because the workplace was closed down or employees were furloughed to pay employees for Family First leave would be an “illogical result” that Congress clearly did not intend.
 
Definition of “Health Care Provider”
 
The Family First Act permits employers to, at their option, exclude “health care providers” from paid leave benefits, but does not define “health care providers.” The DOL’s final Rule defined “health care providers” as any employee of “any doctor’s office, hospital, health care center, clinic, post-secondary educational institution offering health care instruction, medical school, local health department or agency, nursing facility, retirement facility, nursing home, home health care provider, any facility that performs laboratory or medical testing, pharmacy, or any similar institutions, Employer, or entity.” The court found that this definition was too broad as it focused on the employer rather the employee and the employee’s actual duties, even though it conceded that employees who do not directly provide health care services to patients may nonetheless be essential to the health care system’s ability to function. The court left open the possibility that the DOL could provide a different interpretation of “health care provider” for purposes of the Family First Act than it does for the FMLA, but until it does, the only current regulatory definition for “health care provider” was the much narrower definition that is contained in the general FMLA regulations.
 
The DOL’s revised Regulations did change the definition of “health care provider” for purposes of which employees may be excluded from paid leave, but narrowed the definition from that contained in the original Regulations. Relying on the Pandemic and All-Hazards Preparedness and Advancing Innovation Act of 2019, the revised Regulations’ definition of “health care provider” includes “only employees who meet the definition of that term under the Family and Medical Leave Act regulations or who are employed to provide diagnostic services, preventative services, treatment services or other services that are integrated with and necessary to the provision of patient care which, if not provided, would adversely impact patient care.” The revised definition excludes individuals who provide services that affect, but are not integrated into, the provision of patient care. The revised Regulations also provide examples of employees who are not considered to be “health care providers” who can be excluded from paid leave, specifically information technology (IT) professionals, building maintenance staff, human resources personnel, cooks, food service workers, records managers, consultants, and billers. This list is intended to be illustrative, not exhaustive. 
 
Intermittent Leave
 
The Family First Act does not address the issue of intermittent leave. In its final Rule, the DOL significantly limited the availability of intermittent leave under the Family First Act, specifying that the employer and employee must agree to the employee’s use of intermittent leave and limiting the use of intermittent leave for employees working on the employer’s premises to leave for the employee’s need to care for a child whose school or place of care is closed or where child care is unavailable. The court agreed that the limitation that intermittent leave could only be used by employees who needed to care for a child was reasonable in light of the need to minimize the risk that an employee could spread Covid-19 to others. However, the court found no reasonable basis for the requirement that the employer consent to the employee’s use of intermittent leave, and struck that part of the Rule.
 
The DOL’s revised Regulations reaffirmed that employer consent was required for intermittent leave, but clarified the difference between intermittent leave and consecutive requests for leave. The revised Regulations state that “the employer-approval condition would not apply to employees who take Family First leave in full-day increments to care for their children whose schools are operating on an alternate day (or other hybrid-attendance) basis because such leave would not be intermittent. In an alternate day or other hybrid-attendance schedule implemented due to COVID-19, the school is physically closed with respect to certain students on particular days as determined and directed by the school, not the employee.” Under this interpretation, each day the school is closed creates a separate reason for Family First leave that ends when the school opens again for that student.
 
Documentation Requirements
 
The final Rule also required that, before taking Family First Act leave, employees must submit documentation to their employer that indicates the reason for, and duration of, the leave, and where relevant, the authority for the isolation or quarantine order qualifying them for leave. The court found that the requirement that an employee submit documentation before beginning a leave was unreasonable, but left in place the requirement that documentation be presented to support the need for the leave. The Revised Regulations were amended to address this concern and now provide that, like documentation for a leave under the FMLA, documentation for a Family First leave must be provided as soon “as is practical.”
 
Employers should discuss any leave decisions regarding Family First Act compliance with counsel to avoid any potential exposure to liability relating to employee leave applications.
 
           
If you have any questions regarding the foregoing, please contact Nancy Abrams at (215) 241-8894 or nabrams@sgrvlaw.com.
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