Client Bulletins

Staying on top of rules changes can be challenging. We give you the information you need to stay current. The best advice, though, is to speak to your ANB attorney whenever you have questions.

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On June 4, 2021, Governor Ron DeSantis signed into law Senate Bill 922 (“SB 922”). SB 922 expands the benefits afforded to designated servicemembers, veterans, and their family members in hiring and retention for public positions. The changes made to Florida’s veterans’ preference in employment include the following:

  • State agencies and political subdivisions may waive a postsecondary educational requirement for positions of employment if the applicant is (1) a current member of a reserve component of the United States Armed Forces; (2) a current member of the Florida National Guard; or (3) an honorably discharged veteran. This education waiver does not apply if the applicant is applying for a position designated as exempt from veterans’ preference.

  • Similar to state agencies, political subdivisions are now required to develop and implement written veterans’ recruitment plans that establish annual goals for ensuring the full utilization of veterans in the workforce. Under the prior law, although state agencies were already required to develop and implement such plans, political subdivisions were authorized, but not required to do so. The veterans’ recruitment plan applies to the preference in appointment and retention in employment and the education waiver.

  • For positions that use a numerically based selection process in hiring, the point preferences given to qualified applicants have been increased by five points for each category. For example, individuals who were previously qualified to receive a fifteen-point preference under the prior law will now receive a twenty-point preference under the new law. Further, of those individuals who are now qualified to receive a twenty-point preference, those with service-connected disabilities that are rated to be 30% or more must be placed at the top of the employment list.

  • The following positions that were exempt from veterans’ preference requirements under the prior law have been removed from the exemption list: (1) the personal secretary of elected or appointed officers; (2) heads of departments; and (3) positions that require licensure such as a physician, osteopathic physician, or chiropractor.

SB 922 takes effect on July 1, 2021. As a result of the changes in SB 922, more positions with state agencies and political subdivisions should become available to persons qualifying under veterans’ preference. Please contact your Allen Norton & Blue attorney for further guidance on your organization’s situation and for assistance in developing and implementing the written veterans’ recruitment plans discussed above.

-Howie Waldman, Associate, Orlando Office

The Federal Families First Coronavirus Response Act (“FFCRA”), which required that employers with fewer than 500 employees provide sick and family leave benefits for certain COVID-19 related reasons, expired on December 31, 2020. Specifically, the FFCRA’s sick and family leave provisions were not extended as part of the pandemic relief package that was signed by the President on December 27. As a result, employers will not be required to provide paid leave under the FFCRA after December 31, 2020.

Even though the FFCRA’s leave provisions were not extended, the relief package extends the FFCRA tax credit, which reimburses employers for the cost of providing FFCRA leave, through March 31, 2021. Therefore, beginning on January 1, 2021, employers are no longer required to provide FFCRA leave; however, covered employers who voluntarily offer such leave may utilize payroll tax credits to cover the cost of benefits paid to employees through the end of March. The relief package does not change the qualifying reasons for which employees may take leave, the caps on the amount of pay employees receive, or the FFCRA’s documentation requirements.

The law also does not change the amount of leave under the FFCRA. Under the FFCRA, full time employees were entitled to a one-time allotment of 80 hours of paid sick leave and 12 weeks of expanded family medical leave. Therefore, an employer is likely not entitled to a second tax credit for an employee taking leave in 2021, if that employee took leave in 2020.

Nevertheless, employers should be mindful that some states and local governments have enacted COVID-19 leave laws that may not have expired at the end of the year.

On December 16, 2020, the Equal Employment Opportunity Commission (“EEOC”) published its guidance related to the COVID-19 vaccine. While the EEOC guidance implies that employers may generally require their employees to receive the COVID-19 vaccine, there are several legal and practical considerations that employers should contemplate when determining whether a mandatory vaccination policy is appropriate for its business. These considerations include:

  • Whether a mandatory vaccination policy would be job-related and consistent with business necessity based upon the nature of the employers’ workforce and business;

  • Any collective bargaining ramifications for employers with a unionized workforce as the National Labor Relations Board has previously ruled that a flu prevention policy that required employees receive a flu vaccine was a mandatory subject of collective bargaining unless waived;

  • What is a reasonable accommodation at the work place for individuals who advise they cannot take the vaccine because of a disability under the Americans with Disabilities Act or an employee’s sincerely held religious beliefs pursuant to Title VII of the Civil Rights Act;

  • The general duty clause under the Occupational Safety and Health Act, which requires employers to provide a safe and healthy workplace for their employees versus potential worker’s compensation claims from employees who suffer an injury or an adverse effect after receiving a mandatory vaccine, as well as employees who contract COVID-19 at work following the employer’s refusal to mandate the vaccine;

  • If electing to move forward with a mandatory vaccination policy, employers need to determine whether they want to have employees receive the vaccine through a pharmacy or health care provider as opposed to providing the vaccines directly to the employees or through a third party that the employer has a contract with so as to avoid the restrictions on collecting medical information; and

  • If an employer requires that employees submit proof of receipt of the COVID-19 vaccine prior to re-entering the workplace, the employer should warn employees that they should not provide any medical information when submitting their proof of receipt of the vaccine.

Please contact your Allen Norton & Blue attorney for further guidance on your company’s individualized situation and whether your company could or should require COVID-19 vaccines for your employees.

-Shannon Kelly, Shareholder, and Howie Waldman, Associate, Orlando Office

On Wednesday July 8, 2020, the Supreme Court, in 7-2 opinions, decided two major cases affecting employment rights for religious organizations.

The Ministerial Exception

The first, Our Lady of Guadalupe School v. Morrissey-Berru, clarified the scope and application of the Ministerial Exception under the First Amendment, for religious organizations which includes religious schools. The Ministerial Exceptions provides religious schools with autonomy to select individuals to fill certain key roles in religious instructions without government intrusion. 591 U.S._(2020). The effect of this exception protects religious organizations from claims brought under employment discrimination laws, such as Title VII.

Prior to this decision, the Supreme Court had previously recognized a Ministerial Exception under the First Amendment in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC. In Hosanna-Tabor, the Court focused on four factors in a religious instructor’s employment to determine if the position qualified for the Exception:

  1. Whether the individual was given the title of minister, with a role distinct from that of most of its members;
  2. Whether the individual’s position reflected a significant degree of religious training along with a formal a commissioning process
  3. Whether the individual held herself out as a minister of the Church by accepting the formal call to religious services and by claiming certain tax benefits; and
  4. Whether the individual’s job duties reflected a role in conveying the Church’s message and carrying out its mission.

Now, in Morrissey-Berru, the Court clarified that these factors were not alone determinative and there is not a rigid formula for applying the Ministerial Exception to positions in religious schools. On the contrary, the Court noted the analysis is judged on a case-by-case basis and the Exception should center on “what the employee actually does.”

In Morrissey-Berru, both Morrissey and Berru worked as elementary school teachers in their respective religious schools. While they lacked formal religious training or the title of minister, and their teachings covered a number of subjects and were not limited to religious teachings, they were still responsible for integrating religious principles into secular subjects, following religious teachings and exemplifying the ideals of the religion to the students. In addition, they prepared their students for religious services, taught the importance of various aspects of the religion, and prayed with the students on a regular basis.

The Court held that these facts supported applying the Ministerial Exception to these two teachers. In rejecting a rigid test for the exception, the Court noted that if an employee’s job involves educating young people in their faith, “inculcating” its teachings, and training students to live in that faith, the employee can qualify for the Ministerial Exception, even without the title of minister or any formal religious training.

Insurance Coverage for Contraception

In its other decision, Little Sisters of the Poor v. Pennsylvania, et. al, the Court affirmed the ability of employers with religious and moral objections to providing contraception under the Affordable Care Act (“ACA”) to refuse to provide insurance coverage or payments for contraceptive measures. 591 U.S._(2020).

In 2014, the Court addressed challenges to the ACA’s contraceptive mandate under the Religious Freedom Restoration Act (RFRA). In Burwell v. Hobby Lobby, the Court held that the ACA’s requirement to provide contraceptive services substantially burdened the free exercise of certain businesses with sincerely held religious objections to providing employees with certain contraceptive services. Thereafter, the Departments of Health and Human Services, Labor, and Treasury issued two interim rules regarding the exemptions to the ACA’s contraceptive mandate. The first, expanded the scope of the church exemption to the ACA’s mandate to include an employer that “objects . . . based on its sincerely held religious beliefs” to providing insurance coverage or payments for contraceptive services. The second, created an exemption for employer who had “sincerely held moral objections” to providing certain forms or any contraceptive coverage.

Ultimately, in Little Sisters, the Court upheld the ability of the Departments to establish these rules and exemptions. Accordingly, employers fitting under either the moral or religious exemptions to the contraceptive provision may refuse to provide coverage for contraceptive services under the insurance plans provided to employees, and still be compliant with the ACA.

Today, the Supreme Court held that Title VII’s prohibition of discrimination based on sex necessarily extended to individuals discriminated against on the basis of their sexuality and their gender identity. The Supreme Court issued its 6-3 opinion in the combined cases R.G. & G.R. Harris Funeral Homes, Inc. v. EEOC, Altitude Express, Inc. v. Zarda, and Bostock v. Clayton County, Georgia, addressing gender identity and sexual orientation under the sex discrimination theory of Title VII. The cases dealt with individuals who had been fired by their employer for, what they allege, was their status as transgender or homosexual individuals. The Plaintiffs alleged this constituted discrimination based on their sex and was therefore protected under Title VII.

The Court acknowledged that, while both gender identity and sexual orientation are distinct from sex, taking an adverse employment action against an employee due to the employee’s homosexuality or transgender status falls under the “but for” standard for Title VII claims, regardless of other interrelated factors at play. Specifically the Court stated:

An employer who fired an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.

This ruling represents a departure from prior interpretations by the11th Circuit of Title VII and adds gender identity and sexual orientation to the protected categories covered under current federal employment law. Since the Florida Civil Rights Act is interpreted by Courts as being consistent with Title VII, it is likely that Florida state courts will follow in the Supreme Court’s footsteps in extending FCRA protections to individuals on these basses as well. Keep in mind that some local ordinances already extend these protections based on sexual identity and sexual orientation.

The Court did not address potential arguments available to employers under the Religious Freedom Restoration Act.

As a result of this ruling, employers should update their personnel policies and practices to include these new protected categories and ensure these updated policies are properly disseminated to all employees. Additionally, employers should conduct supervisory training on the updates to the protected categories to include sexual identity and sexual orientation to protect against potential future liability.

-Carly Stein, Tampa Associate

No. 17–1618, 723 Fed. Appx. 964, reversed and remanded; No. 17–1623, 883 F. 3d 100, and No. 18–107, 884 F. 3d 560, affirmed.

"An employer who fired an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids."

"Those who adopted the Civil Rights Act might not have anticipated their work would lead to this particular result... But the limits of the drafters’ imagination supply no reason to ignore the law’s demands... Only the written word is the law, and all persons are entitled to its benefit."

"Few facts are needed to appreciate the legal question we face. Each of the three cases before us started the same way: An employer fired a long-time employee shortly after the employee revealed that he or she is homosexual or transgender—and allegedly for no reason other than the employee’s homosexuality or transgender status."

Full Text of the Opinion Here

As employers were faced with a global pandemic, some were required to curtail their operations and others were required to completely shut down. There are also those employers who remained opened but have had some or all of their employees working remotely. Consequently, employers who are now looking to return to “normal” operations must plan how they will recall their employees and how to deal with the new issues relating to those employees returning to work. While we anticipate additional guidance from federal, state, and local governments, this Guide provides a number of considerations for the safe and effective reopening of businesses.

When will employers be able to reopen their physical locations?

This will vary based on the employer’s location and industry as well as state and local directives. For instance, Governor DeSantis’s Executive Order 20-112 provides that beginning on May 4, 2020, restaurants and in-store retail sales throughout Florida were allowed to reopen subject to a 25% occupancy cap and other limitations, with the exception of those businesses located in Miami-Dade, Broward, and Palm Beach counties. The businesses permitted to reopen are still required to comply with social distancing and safety guidelines issued by the Centers for Disease Control and Prevention (“CDC”) and the Occupational Safety and Health Administration (“OSHA”).

How can employers safely reopen their physical locations?

While employers will have to comply with state and local directives, the CDC has recommended a number of safeguards for employers to follow. Such safeguards include:

  • Encouraging the use of healthy hygiene practices;
  • Increasing cleaning, disinfection, and ventilation of the workplace;
  • Social distancing, including placing employee workspaces at least 6 feet apart;
  • Staggering employees’ shifts;
  • Promoting telework and cancelling non-essential travel;
  • Restricting use of shared spaces and items, including limiting meetings or conducting them virtually; and
  • Providing safety training.

Additionally, employers should consider implementing the following monitoring procedures to ensure that their employees are well protected:

  • Instructing sick employees stay home;
  • Establishing daily health screenings (which include taking their temperature) for employees;
  • Establishing health screenings for customers and vendors;
  • Monitoring absenteeism and implementing flexible time off policies;
  • Implementing an action plan if an employee tests positive for COVID-19;
  • Creating and testing emergency communication channels for employees; and
  • Establishing communications with state and local authorities.

What about employees with childcare issues?

As employers prepare to open their doors, a number of schools remain closed. This presents a complicated scenario for many in the workforce. In March, Congress enacted the Families First Coronavirus Response Act (“FFCRA”). Pursuant to the FFCRA employers of fewer than 500 employees, including those with less than 50, must provide two weeks of paid sick leave and, if school closure requires them to provide care to their children, up to ten additional weeks of partially-paid Emergency Family Medical Leave Extension Act (‘EFMLEA”) (up to $200 per day). Generally, however, if there is someone at home to provide childcare the employee is not entitled to the EFMLEA. Additionally, Employers of fewer than 50 employees might be exempt, if to provide such leave would jeopardize the business’ ability to survive. Nevertheless, employers must be prepared to address situations on a case-by-case basis.

How can employers recall their employees to return to work?

Employers should assess their workforce and determine which employees will be recalled and the positions and salaries of recalled employees. To the extent any employees will not be recalled, or will be terminated, employers should contact counsel to perform a disparate impact analysis and to assess whether other obligations may be triggered. It is important that employers document the objective criteria used for recalling or terminating employees. This is an employer’s defense against potential claims by employees. This is especially true if some of the workforce has taken paid leave under the FFCRA and if not recalled when others are could state a prima facie case for retaliation if they are treated differently from similarly situated employees.

Once employers have determined which employees will be recalled, employers should provide a furlough recall letter to furloughed employees to whom re-employment will be offered. The Furlough Recall Letter should include the following:

  • Offer of employment;
  • Terms of employment, such as position, salary, hours, and exempt/non-exempt status;
  • Start date;
  • Identification of any changes made to employee’s position;
  • Benefits status, including any changes to benefits, accrued PTO, and sick leave;
  • Information regarding the company’s accommodation request process;
  • Any new policies and procedures relating to re-opening, such as staggering shifts, working from home, social distancing, health precautions, reduced customer capacity, and any industry-specific or government-mandated requirements; and
  • Contact information for follow-up questions.

What if an employee is not ready to return to work?

Some furloughed employees may indicate that they are not ready to return to work. Those employees may be receiving state unemployment benefits as well as the $600 per week federal supplement under the CARES Act. In some cases, this is more more than they would receive if they returned to work full-time at their previous compensation.

Employers have a right to recall their employees. Generally, if a worker refuses to return to work after reasonable notice, the worker can be terminated and likely disqualified from receiving further unemployment benefits. The Employer, however, needs to document the offer by sending a letter to the employee outlining the offer including the start date. If the employee verbally declines or does not show up, then the Employer should send a second letter confirming the refusal. A general anxiety about feeling unsafe going back to work is not an acceptable reason to refuse to return to work. However, employers should be cautious that if they are not following CDC and OSHA guidelines and taking measures to ensure a safe workplace, an employee may be protected by OSHA from returning to work.

What policies need to be updated as employees return to work?

Employers should review their policies to ensure compliance with all newly-enacted laws and consider whether their existing policies should be revised. For example, the FFCRA, which applies to most employers with fewer than 500 employees, has made significant changes to employers’ obligations under the Family and Medical Leave Act by implementing paid sick leave. Employers should also review their telework/working remotely policies, specifically as to timekeeping and the confidentiality of business information.

Employers should implement policies on COVID-19 prevention measures, such as mandatory temperature monitoring, handwashing, and face mask usage while in the workplace. Additionally, employers should decide how to address instances if employees become symptomatic, test positive, or are potentially exposed to COVID-19. These policies should inform other employees of the steps being taken to ensure employee safety. Lastly, employers should encourage new forms of greeting to avoid hand shaking or other forms of close physical contact which had become habit.

In March of this year the Florida Legislature passed Senate Bill 664 titled “Verification of Employment Eligibility” which institutes new requirements for employers related to the Department of Homeland Security’s E-Verify program. While the bill takes effect July 1, 2020, the E-Verify requirements for public and private employers do not take effect until July 1, 2021.

Overview of E-Verify Program

E-Verify is an online federal service offered by the US DHS at no-cost to employers which allows employers to verify the employment eligibility of new hires. The service compares information from the employee’s Form I-9 to records available to the DHS and Social Security Administration to confirm that an employee is eligible to work in the United States.

To use E-Verify, employers must enroll in the program online. Employers are required to electronically sign a “Memorandum of Understanding” which outlines the responsibilities employers must agree to before accessing the service. Employers must designate a program administrator, who will be responsible for creating new cases in E-Verify and complying with the rules and restrictions set forth in the Memorandum of Understanding.

To verify employment in E-Verify, an employer creates a “case” for a new hire by putting in required information from the new hire’s I-9. The E-Verify program will check the case information with other federal records and determine the status of the employee’s eligibility. If the new hire’s employment is not immediately authorized there are additional steps which must be taken by the employer to determine the new hire’s employment authorization. Employers who are not familiar with E-Verify or have not registered for or used the program will need to become acquainted with it prior to the law going into effect.

Public Employer E-Verify Requirements

Under Florida’s new proposed law all public employer, including any state, regional, county, local or municipal governments, public schools, community colleges and state universities, and any public employer contractor or subcontractor, must register and utilize the E-Verify system to verify the work authorization of all newly hired employees. It should be noted that this does not require employers to go back and test the employment authorization of current employees and indeed such testing would be a violation of the E-Verify program’s Memorandum of Understanding.

In addition to verifying the authorization of their new hires, public employers and public contractors/subcontractors cannot enter into contracts with other contractors or subcontractors unless the contractors and subcontractors agree to enroll in and utilize E-Verify to determine the work authorization of their new hires. All subcontractors must provide contractors with an affidavit representing that the subcontractor does not contract with, subcontract with, or employ any unauthorized alien. Further, contractors must maintain a copy of this affidavit throughout the period of the contract.

A public employer, public contractor, or public subcontractor which has a good faith belief that an entity or person it is contracting with is not utilizing E-Verify must terminate its contract with the entity. The public employer may not award that entity a public contract for at least a year after the contract termination date. A public employer which develops a good faith belief that a subcontractor is not utilizing E-Verify must alert the prime contractor, at which point the prime contractor must terminate its contract with the subcontractor. Termination of a contract or subcontract based on a good faith belief is not considered a breach of contract. Furthermore, if a contract is terminated due to an entity’s failure to comply with these E-Verify requirements, the entity is responsible to the public employer for the additional costs the public employer incurs as a result.

Private Employer Verification Requirements

As to private employers, the new law does not mandate the use of E-Verify. Rather, it requires verification of an individual’s employment eligibility after the potential new hire accepts the employer’s employment offer. To verify employment eligibility, private employers may choose either to use E-Verify or to request the new hire provide employment eligibility documentation required by USCIS on the Form I-9. Private employers must keep these records for at least three years after the employee is initially hired.

While private employers are not required to verify eligibility of current employees, if a private employer uses “contract employees”, the employer must verify the contract employee’s eligibility when renewing or extending the employee’s contract. It should be noted that the statute does not define these “contract employees” but it refers to those employees who have employment contracts, not independent contractors.

As a method of enforcement, the Florida Department of Law Enforcement, the Florida Attorney General, the state attorney and the statewide prosecutor may require a private employer to provide records the employer relied on to verify employment. Private employers who do not provide this documentation must provide the state with an affidavit asserting the employer will comply with this law regarding employment verification, the employer has terminated its employment of unauthorized aliens and the employer will not knowingly or intentionally employ unauthorized aliens. Any employer who fails to attest to this may have their business licenses with the state revoked.

On March 18, 2020, Congress passed H.R. 6201: Families First Coronavirus Response Act-a relief package that, among other things, contains several provisions affecting employers. President Trump signed the bill later that same evening, which enacted it into law effective April 2, 2020. Below is a summary of the key employment-related aspects of the Act.

1. Emergency Family and Medical Leave Expansion Act

The Act provides employees of:

Private sector employers with fewer than 500 employees; or

Public agencies (regardless of the employee threshold)

with the right to take up to 12 weeks of job-protected leave under the Family and Medical Leave Act ("FMLA") for COVID-19 related matters as set forth below.

The Act provides that the first ten days of leave can be unpaid but requires that the remainder of the 12 weeks of FMLA leave be paid at a rate of no less than two-thirds of the employee's usual rate of pay. FMLA leave for all other purposes remains unpaid. The Act also provides a limit on this pay entitlement: $200 per day and $10,000 in aggregate per employee. Employees who work part-time or irregular hours are entitled to be paid based on the average number of hours the employee worked for the six months prior to taking Emergency FMLA. For employees who have worked less than six months, they are entitled to be paid based on the employee's reasonable expectation at hiring of their average number of hours.

To be eligible for paid leave, employees must have been:

On the employer's payroll for 30 days; and

Uses the emergency FMLA leave to care for an employee's child, under the age of 18, if the child's school or place of care has been closed, or the childcare provider is unavailable, due to the coronavirus.

Requests for FMLA leave for any other purpose should continue to be handled through normal FMLA procedures (i.e. up to 12 weeks of unpaid leave).

During the initial ten-day period of unpaid leave, the employee may choose to substitute accrued paid time off or other medical or sick leave during this period. After the first ten days of unpaid leave, employers must continue paid FMLA leave at a rate of no less than two-thirds of the employee's usual rate of pay.

As with traditional FMLA leave, this leave is job-protected, and an employer must return the employee to the same or equivalent position upon their return to work. While the Act outlines an exception for employers with less than 25 employees if the employee's job no longer exists due to the coronavirus pandemic, employers are still required to make reasonable efforts to restore the employee to an equivalent position over a one-year period beginning on the earlier of (a) the date on which the qualifying need related to a public health emergency concludes, or (b) the date that is 12 weeks after the date the employee's leave started.

The Act grants the Secretary of Labor the authority to issue regulations exempting: (1) certain health care providers and emergency responders from taking leave under the Act; and (2) small businesses with fewer than 50 employees from the requirements of the Act if it would jeopardize the viability of the business.

Please note that this amendment to the FMLA would expire on December 31, 2020.

2. Emergency Paid Sick Leave Act

The Act separately provides employees of:

Private entities employing fewer than 500 employees; and

Public agencies (or any other entity that is not a private entity or individual) which employ 1 or more employees

with the right of up to 80 hours of paid sick leave (or the equivalent of two weeks of hours for part-time employees) for use if an employee is unable to work (or telework) due to a need for leave because:

  1. The employee is subject to a Federal, State, or local quarantine or isolation order related to COVID-19.
  2. The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID- 19.
  3. The employee is experiencing symptoms of COVID- 19 and seeking a medical diagnosis.
  4. The employee 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).
  5. The employee is caring for a son or daughter of such employee if the school or place of care of the son or daughter has been closed, or the child care provider of such son or daughter is unavailable, due to COVID-19 precautions.
  6. The employee 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.

Employers must compensate employees for any paid sick time they take at their regular rates of pay (unless the leave is taken pursuant to reasons 4, 5, and 6 above, in which case the employee is only entitled to two-thirds of his or her regular rate of pay). The sick leave is available for immediate use by employees, regardless of length of employment.

Additionally, part-time employees are entitled to the number of hours of paid sick time equal to the number of hours they work, on average, over a two-week period.

Wages pursuant to the Emergency Paid Sick Leave Act are capped at $511 per day up to $5,110 total per employee for their own use (see subparagraphs (1)-(3) above) and at $200 per day up to $2,000 total to care for others and any other substantially similar condition (see subparagraphs (4)-(6) above).

Notably, employers must provide the paid leave provided by the Act in addition to any paid leave already provided and cannot require employees to utilize other paid leave before using the paid leave provided by this bill.

Like the amendment to the FMLA, this aspect of the Act would also expire on December 31, 2020.

What happens if employees are unable to work solely due to business determinations or closures?

In other words, if it is a layoff or closure of the business, based on a literal reading of the Act, those employees would not be eligible for paid sick or FMLA leave. To qualify under the Act, employees must fall into one of the above leave situations. If an employer prohibits employees from physically reporting to work due to Coronavirus/COVID-19 concerns, and employees are unable to work remotely and do not otherwise fall within the leave reasons discussed above, it appears they would not be eligible for benefits under this Act. In such circumstances, leave will be governed by state or local statutory sources and the company's policies or collective bargaining agreements.

Who pays for the leave or sick time?

Employers must pay these benefits, however, there are provisions in the bill that provide tax credits to employers in certain circumstances and with certain caps.

Exclusions:

Under the Act employers, at their discretion, to exclude any employee "who is a health care provider or an emergency responder" from the benefits set forth in those Acts. The DOL is expected to issue regs to address the issue and (hopefully) add more clarity but each Act expressly affords employers of such employees the discretion regardless.

What's Next?

Once the bill is enacted, covered employers as described abovewill have to adhere to the above leave requirements within 15 days and they will be required to provide notice to their employees through postings and policies. In addition to this federal Act, many states are proposing similar emergency legislation to enact or expand their own paid sick leave or FMLA laws to cover COVID-19 related issues. These state laws, if enacted, would be in addition to these new federal requirements.

We will continue to monitor this situation as it continues to rapidly change and develop.

Employers can expect COVID-19 to impact their workforce as it spreads throughout the United States and Florida. We recommend employers be prepared as it spreads locally and consider preventative measures to maintain the safety of their workplace and protect their employees within the law. For additional information, the Centers for Disease Control (CDC) has issued guidance for employers which we recommend checking regularly. Additionally, we recommend checking updates from federal, state, and local officials, and following directives and procedures that may be applicable to your particular organization.

What steps can employers take now?

  • Take a common sense approach to preventing the spread of highly communicable flu-like diseases in the workplace by practicing good hygiene, avoiding travel to areas of concern, and staying home when sick.

  • Inform employees that the company is monitoring the situation and taking appropriate precautions and provide a point person for questions regarding the company’s response to COVID-19.

  • Direct employees to immediately notify the company if they have been exposed to COVID-19 so that appropriate support and accommodations can be provided, and ensure employees that the disclosure of such information will be confidential.

  • Evaluate (or create) workplace emergency response protocols for infectious diseases and modify them to address a potential coronavirus outbreak. Protocols should include contact information for employer representatives, teleworking policies or plans, and leave policies in case of an outbreak at work or in the community.

  • Encourage sick employees to stay home.

  • Perform routine environmental cleaning.

  • Encourage employees to wash their hands, maintain safe social distance, avoid large gatherings, and consider changes to business travel and alternatives such as video conferencing.

  • Advise employees before traveling to take certain steps. Check the CDC’s Traveler’s Health Notices for the latest guidance and recommendations for each country to which employees may travel.

  • Continue following relevant news updates. Remain informed about whether any employees become symptomatic, while keeping the workplace as safe and clean as possible in order to limit any potential spread of COVID-19.

  • Be deliberate in creating strategies for continuing business operations if the outbreak turns into an epidemic.

Frequently Asked Questions (FAQ)

Below are general questions and answers, but all situations should be considered on a case-by-case basis and with legal advice.

Can employers prohibit employees from traveling for business or personal reasons to areas affected or outside the U.S?

Yes. There are no laws prohibiting employers from limiting travel for employees to certain areas or countries outside the United States, although enforcement will be difficult.

Can employers require employees notify them of travel plans?

Yes. There is no law prohibiting employers from requiring employees to disclose travel plans. Again, expect enforcement problems.

What should an employer do if it suspects that one of its employees was exposed to the virus?

If an employer has a reasonable, objective belief that an employee may have been exposed to COVID-19 and is a danger to the workplace, the employer can require the employee to work from home. When determining whether you should require an employee to work from home, employers should consider the employee’s recent travel, the amount of time the employee has been back, and the employee’s symptoms, if any. If an employee’s position does not allow him or her to work from home, then the employer should consider providing the employee with paid leave for the duration of the incubation period (originally believed to be 14 days, although newer information indicates a longer period of up to 24 days).

Can employers require that employees be tested for COVID-19?

Depends on the circumstances. The Americans with Disabilities Act (ADA) prohibits mandatory medical examinations unless they are job related and consistent with business necessity. An employer must have a good faith, objective, and reasonable belief based on the evidence that the examination is necessary or that there is a direct threat to the employee’s co-workers. If so, then mandatory medical examination is permissible. Voluntary medical examinations should be encouraged, noting that employers have confidentiality requirements under the ADA if this information is disclosed by the employee. However, employers should be mindful of the CDC’s guidance that testing for COVID-19 may be delayed or limited due to increased demands on the healthcare system, and thus, employers may need to relax existing leave policies to account for this reality.

If an employee has contracted COVID-19 are they eligible for FMLA leave?

Probably. The Family Medical Leave Act (FMLA) entitles employees with a “serious health condition,” as defined by law, to unpaid leave and job restoration benefits. A “serious health condition” is an illness, injury, impairment, or physical or mental condition that involves inpatient care or continuing treatment from a healthcare provider. Symptoms of COVID-19 are described as flu-like, and generally the common flu is not considered a serious health condition unless the condition meets the FMLA definition. In other words, a serious flu involving inpatient care and/or continuing treatment may qualify.

Accordingly, an employee with COVID-19 or an employee who is taking care of a qualifying family member with COVID-19 may be permitted to take protected FMLA leave based on the same conditions as any other employee and if the condition qualifies like any condition under the FMLA. Employers should note, however, that charging an employee FMLA leave who does not have an otherwise FMLA qualifying condition is prohibited. Stated differently, an employee without the condition, cannot be charged FMLA leave if they are out of the workplace. Likewise, if a parent is caring for a child without a serious health condition (or a child is home for canceled school due to an outbreak), they cannot be charged.

Can an employer require an employee with COVID-19 that is on leave to use FMLA leave for the absence?

Yes. Consistent with an employer’s policy and the leave qualifies as FMLA leave, an employee can be charged their FMLA leave while on a leave of absence if they have contracted COVID-19.

Can an employer require an employee to take leave or telework if they are suspected of having the disease or are returning from an area infected by the disease?

Yes. There is no law prohibiting this action. Non-exempt employees are not required to be paid for time they are not working under the Fair Labor Standards Act (FLSA). However, note that non-exempt employees must be paid for time spent working from home. Exempt employees that are directed to telework for precautionary reasons must continue to be paid

Is an employer required to attempt to maintain a workplace free from COVID-19 exposure?

Yes. Private employers are covered by the Occupational Safety and Health Administration (OSHA) and common sense requires sick employees to stay home. In a potential pandemic, although not specific to COVID-19, an employer can be cited for a general duty clause violation where OSHA proves, for example, that a) the pandemic virus was present in the workplace and the employer's efforts to control exposure were insufficient, and b) employees were required to perform tasks that exposed them to the hazard of a pandemic influenza. See 29 U.S.C. § 654(a)(1).

Both the CDC and OSHA have guidelines/checklists regarding disease control practices:

OSHA - https://www.osha.gov/SLTC/covid-19/

CDC - https://www.cdc.gov/coronavirus/2019-ncov/specific-groups/guidance-business-response.html

Should employers disclose the name of an employee that contracts COVID-19?

No. The ADA requires confidentiality of medical information except for a need-to-know basis including human resources personnel, direct supervisors, and the government. In the event of an outbreak, employers must balance this restriction of disclosing the identity of an employee with their efforts to protect their workforce from additional transmission of COVID-19.

FAQ For Public Employers

What affect does the Governor’s Executive Order No. 20-51 and the Declaration of Public Health Emergency have on Florida’s local governments?

The Governor’s Executive Order directs the State Surgeon General to declare a public health emergency and directs the Florida Department of Health to coordinate emergency response activities among state agencies and local governments. See Section 381.0011(7), Florida Statutes. The public health emergency authorizes the State Surgeon General to take actions that are necessary to protect the public health. See Section 381.00315, Florida Statutes. These actions may include declaring, enforcing, modifying, or abolishing the isolation and quarantine of persons, animals, and premises.

What does this mean for local law enforcement agencies?

Any order of the Department of Health issued pursuant to Section 381.00315(4), Florida Statutes, is immediately enforceable by law enforcement. See Section 381.00315(4), Florida Statutes.

What does this mean for local officials?

Appropriate city and county officials have a duty to assist the Department of Health and any of its agents with enforcement of health laws, rules, and orders. See Section 381.0012, Florida Statutes.

How is the Sunshine Law impacted by the emergency?

At this time, all municipal body meetings are still required to be open to the public and board members are still required to be physically present to constitute a quorum. However, an exemption may be made as the COVID-19 outbreak continues.

Are members of the public still able to comment at public meetings?

Generally yes, but there is a limited exception to the right to public comment in emergency situations affecting the public health, welfare, or safety, where allowing the public to comment would cause an unreasonable delay in the board or commission’s ability to act. See Section 286.0114, Florida Statutes.

On February 26, 2020, the National Labor Relations Board ("NLRB") issued a new rule regarding the standard for determining the status of a joint-employer under the National Labor Relations Act ("NLRA"). The new rule effectively eliminates the NLRB's previous standard defined in Browning-Ferris Industries, 362 NLRB No. 186 (2015), which stated that a business qualifies as a joint employer if it exhibits "indirect" control or the ability to exert such control over employees. This applies to private sector employers even if they are not unionized.

Under the new rule, a business will only be considered a joint-employer of another employer's employees if the business possesses and exercises substantial direct and immediate control over one or more essential terms and conditions of employee's employment. The rule also defines the term "substantial direct immediate control" as direct and immediate control that has a regular or continuous consequential effect on an essential term or condition of employment of another employer's employees. Such control is not "substantial" if it is only exercised on a sporadic, isolated, or de minimis basis.

The NLRB further clarified the list of essential terms and conditions it will consider when making a determination regarding whether a joint-employer status exists including wages, benefits, hours of work, hiring, discharge, discipline, supervision, and direction. However, evidence of indirect and contractually reserved but unexercised control over essential terms and conditions of employment is still considered probative, but only to the extent that it supplements and reinforces evidence of direct and immediate control.

Recognizing that a joint-employer finding has significant implications for employers and their obligations under the NLRA relative to collective bargaining, strike activity, and unfair labor practice liability, the NLRB concluded that the purposes of the NLRA were not furthered under the Browning-Ferris standard. Specifically, the NLRB found that the previous standard improperly exposed an employer's direct business partner to joint-and-several liability even though the business partner did not actively participate in decisions regarding employees' wages, benefits, or other essential terms and conditions of employment. The new rule provides clear guidance for businesses regarding the essential factors that may give rise to joint-employer status. It further reduces businesses' risk of litigation and related costs for unfair labor practices and may eliminate their responsibility to bargain with subcontracted workers who form a union.

The final rule is set to go into effect on April 27, 2020. Employers that are subject to the NLRA should immediately review their staffing structures to determine the impact, if any, of the NLRB's new rule. Should you have any questions or concerns regarding your company's staffing structure, please contact your Allen Norton & Blue attorney.

-Barron Dickinson, Associate Attorney with ANB's Tallahassee Office.

The National Labor Relations Board ("NLRB") recently held that work rules requiring confidentiality during the course of workplace investigations are presumptively lawful. In Apogee Retail LLC d/b/a Unique Thrift Store, 368 NLRB No. 144 (2019), the NLRB overturned its previous decision of Banner Estrella Medical Center, 362 NLRB No. 1108 (2015), which required employers to prove, on a case-by-case basis, that the integrity of an investigation would be compromised without confidentiality. This applies to all private sector employers even if they are not unionized. The standard set forth in Banner Estrella required employers conducting internal investigations to analyze whether the need for confidentiality of the investigation outweighed the adverse impact on the exercise of workers' rights under Section 7 of the National Labor Relations Act to engage in "concerted activity for mutual aid and protection."

In Apogee Retail, the NLRB examined whether an employer could lawfully maintain written rules, which required employees to "maintain confidentiality" regarding workplace investigations into "illegal or unethical behavior" and prohibited "unauthorized discussion" of investigations or interviews "with other team members." In overruling its decision in Banner Estrella, the NLRB elected to apply the balancing test for analyzing facially neutral workplace rules established in The Boeing Company, 365 NLRB No. 154 (2017). The Boeing Co. test classifies employers' workplace rules and polices into three separate categories: (1) those that are generally lawful to maintain; (2) those requiring scrutiny on a case-by-case basis weighing the employer's business justification against the impact on employees' Section 7 rights; and (3) those that are unlawful to maintain.

Applying the Boeing Co. test, the NLRB concluded that the employer's confidentiality rules should be categorized as lawful under the first category because the rules narrowly required "that employees not discuss investigations of...incidents or interviews conducted in the course of an investigation." Underpinning the NLRB's ruling was its recognition of the numerous compelling reasons an employer needs to maintain confidentiality during an ongoing investigation, including:

  1. to ensure the integrity of the investigation;
  2. to acquire and preserve evidence while employees' recollection of relevant events is fresh;
  3. to encourage prompt reporting of potentially serious workplace issues including unsafe conditions, illegal harassment, criminal misconduct, and discrimination, without fear of retaliation by employees; and
  4. to protect employees from dissemination of their sensitive personal information.

Additionally, the NLRB noted that its own investigative procedures acknowledge the need for confidentiality during an investigation. The NLRB further recognized that the regulations of federal agencies such as the Equal Employment Opportunity Commission and the Occupational Safety and Health Administration also require confidentiality during their own individual investigations of alleged misconduct.

Notwithstanding the foregoing, the NLRB indicated that employees not involved in an investigation still must be allowed to discuss the incident that is the subject of the investigation. Further, employees who are involved in the investigation still must be allowed to discuss the incident provided they do not disclose any information they either learned or provided during the course of the investigation.

Under the standard announced in Apogee Retail, permissible confidentiality rules can now prohibit employees' discussion of investigations of incidents or the interviews conducted in the course of such investigations. However, employers should be mindful that workplace rules that require confidentiality following the conclusion of an investigation still would require the employer to demonstrate that the need for such rules outweighs the potential adverse impact to employees' Section 7 rights under Category #2.

Employers should immediately review their workplace polices and rules to ensure compliance with the NLRB's new standard. Should you have any questions or concerns regarding your company's policies, please contact your Allen Norton & Blue attorney.

-Barron Dickinson, Associate Attorney with ANB's Tallahassee Office.

On September 24, 2019, the U.S. Department of Labor (DOL) announced a final rule, which updates the earnings thresholds necessary to exempt executive, administrative, and professional employees from the Fair Labor Standards Act's (FLSA) minimum wage and overtime pay requirements and allows employers to count a portion of certain bonuses or commissions towards meeting the salary level. The final rule will be effective on January 1, 2020.

In the final rule, the DOL is:

  • Raising the "standard salary level" from the currently enforced level of $455 per week to $684 per week (equivalent to $35,568 per year for a full-year worker);
  • Raising the total annual compensation requirement for "highly compensated employees" from the currently enforced level of $100,000 per year to $107,432 per year;
  • Allowing employers to use nondiscretionary bonuses and incentive payments (including commissions) paid at least annually to satisfy up to 10% of the standard salary level, in recognition of evolving pay practices; and
  • Revising the special salary level for workers in U.S. territories and the motion picture industry.

The DOL estimates that 1.3 million additional workers will be entitled to wage and overtime pay as a result of the increase to the standard salary level. The DOL also estimates that an additional 102,000 workers will be entitled to overtime pay as a result of the increase to the "highly compensated employees" compensation level.

This final rule has been submitted to the Office of the Federal Register (OFR) for publication and is currently pending placement on public inspection at the OFR and publication in the Federal Register. This version of the final rule may vary slightly from the published document if minor technical or formatting changes are made during the OFR review process. Only the version published in the Federal Register is the official final rule.

If you have any questions or concerns regarding the classification of your own workers, please contact your Allen, Norton & Blue attorney.

While the laws allow private employers to have broad policies requiring drug testing for employees and applicants, public employers are subject to more stringent drug-testing restrictions due to the constraints imposed by the Fourth Amendment of the Constitution.

The Fourth Amendment protects against unreasonable searches and seizures. As a result, for a public employer to drug test a public employee or applicant, the drug test must be deemed reasonable. In order to be reasonable, a drug test must normally be based on individualized suspicion of wrongdoing, which requires a public employer to have a reason to believe that a particular employee is under the influence of drugs. Examples of this suspicion can include the employer noting an employee's glassy eyes, slurred speech, and the smell of drugs or alcohol on the employee. Generalized justification for suspicionless testing, including providing safe and efficient public services, does not justify across-the-board drug testing.

While, normally, individualized suspicion is required to drug test a public employee, there are a few notable exceptions, including exceptions for employees engaged in "safety-sensitive tasks." In those instances, employees regularly engaged in these tasks may be tested without reasonable suspicion.

The determination of whether an employee is engaged in safety-sensitive tasks is made on a case-by-case basis. Certain job categories however, have been found by courts to regularly engage in safety sensitive tasks such that they can be subject to suspicionless drug testing. Examples of these safety sensitive positions include:

  • Police Officers
  • Firefighters
  • Correctional Employees
  • Heavy Equipment Operators
  • Paramedics/EMTS
  • Health care providers
  • Employees working with drugs/controlled substances
  • Sanitation drivers
  • Employees who carry a firearm
  • Wastewater and sewage treatment plant operators
  • CDL Drivers
  • Employees whose job duties involve frequent driving
  • Mechanics
  • Positions which work closely with or oversee children including both teachers and substitute teachers
  • Positions which regularly work with classified or highly sensitive criminal information

It should be noted that if a public employer has a unionized workforce, random drug testing for public employees is a mandatory bargaining issue. Nevertheless, drug testing based on reasonable suspicion is still a managerial prerogative.

While the positions identified above are generally considered to engage in safety sensitive tasks, employers should still conduct a case-by-case analysis of the safety sensitive tasks of an employee's job before making a determination. The infrequent participation in a safety sensitive task might not be enough to constitute special needs for drug testing.

Similarly, in Friedenberg v. Sch. Bd. of Palm Beach Cty., 9:17-cv-80221-RLR (11th Cir. 2018), the Eleventh Circuit recently considered the constitutionality of applicant drug testing for public sector employment. The Eleventh Circuit reiterated that across the board drug testing of all job applicants is impermissible. Rather, just as with current employees, the testing is only constitutional if the job position sought is safety sensitive. In Friedenberg, the court considered this question in the context of applicants for substitute teacher positions who had been given a conditional offer of employment. After a comprehensive analysis of the job responsibilities and the interests and risks at stake, the court concluded that drug testing of substitute teacher applicants was permissible.

Finally, it is important to note that despite recent changes in Florida law, public employers may still bar the use medical marijuana both on and off the job. In addition, public employers are not required to accommodate medical marijuana use under the ADA.

Like many employers, Bud's Woodfire Oven LLC d/b/a Ava's Pizzeria required its employees to agree to the arbitration of "any and all disputes" arising from the employment relationship, and limited "any relief or recovery to the arbitrator's award." However, on August 16, 2019, the National Labor Relations Board (NLRB), in the case of Bud's Woodfire Oven LLC, 368 NLRB 45 (2019), held that the language in that arbitration agreement "explicitly interfere[d] with employee's Section 7 rights to file charges" with the NLRB, and prohibited them from obtaining any remedies through the NLRB. Significantly, the arbitration agreement provided:

  • Nothing in this Agreement precludes Employee from filing a charge or from participating in an administrative investigation of a charge before any appropriate government agency. However, Employee understands and agrees that Employee cannot obtain any monetary relief or recovery from such a proceeding.

Bud's Woodfire Oven LLC is the last of a recent trilogy of decisions in which the NLRB has sought to define employee rights with respect to mandatory arbitration agreements after the Supreme Court's decision in Epic Systems Corp. v. Lewis,138 S.Ct. 1612 (2018). In Epic Systems Corp., the Supreme Court held that employer-employee agreements containing class and collective waivers and providing that employment disputes are to be resolved through individualized arbitration do not violate the National Labor Relations Act (NLRA) and must be enforced as written pursuant to the Federal Arbitration Act (FAA). The Supreme Court focused on the fact that Section 7 did not mention class or collective procedures or express any disapproval of arbitration.

Nevertheless, on June 18, 2019, the NLRB found that an arbitration agreement that required employees to arbitrate "all claims and controversies" with their employer unlawfully restricted employees' access to the NLRB to adjudicate labor disputes. Prime Healthcare Paradise Valley, LLC,368 NLRB 10 (2019).

In addition, on August 14, 2019, in Cordúa Restaurants Inc., 368 NLRB 43 (2019), the NLRB affirmed the right of employers to require its employees to sign mandatory arbitration agreements prohibiting them from opting into a collective action in a Fair Labor Standards Act claim for overtime pay. The NLRB also concluded that the NLRA does not prohibit an employer from threatening to discharge an employee who refuses to sign such an agreement. However, the NLRB determined that employers could not take adverse actions against employees who engage in concerted activity by filing a class or collective action.

Back to Bud's Woodfire Oven, there, the Board ordered the Pizzeria to:

(a) Rescind the mandatory arbitration agreement in all its forms or revise it in all its forms to make clear to employees that the agreement does not bar or restrict employees' right to file charges with and obtain remedies from the National Labor Relations Board.

(b) Notify all current and former employees who were required to sign or otherwise become bound to the arbitration agreement in any form that the agreement has been rescinded or revised and, if revised, provide them with a copy of the revised agreement.

This trilogy of recent NLRB decisions carries significant implications for all private sector employers who utilize or are contemplating utilizing employer-employee agreements. While arbitration agreements and class/collective action waivers do not violate the NLRA, given these recent decisions employers must be certain to make it clear in their employer-employee agreements that the agreements do not in any way restrict an employee's right to file charges with the NLRB and obtain relief under the NLRA.

Maybe it is time to consider a waiver of jury trials. Contact your attorney at Allen Norton & Blue to explore your options.

U.S. Department of Labor Issues Opinion Letter Providing Employers with Guidance Regarding the Proper Classification of Workers Under the Fair Labor Standards Act

On April 29, 2019, the U.S. Department of Labor ("DOL") issued an opinion letter that provides employers with additional guidance regarding the appropriate classification of certain types of workers under the Fair Labor Standards Act ("FLSA").

The DOL issued the opinion letter in response to an inquiry submitted by a virtual marketplace company seeking guidance as to whether its service providers should be classified as employees or independent contractors under the FLSA.Contrary to a prior opinion letter issued by the DOL during the Obama administration, the DOL now determined that the working relationships of these individuals indicated that they should be classified as independent contractors under the FLSA. In reaching this conclusion, the DOL applied the following six-factor balancing test which examines:

  1. The nature and degree of the potential employer's control;
  2. The permanency of the worker's relationship with the potential employer;
  3. The amount of the worker's investment in facilities, equipment or helpers;
  4. The amount of skill, initiative, judgment or foresight required for the worker's services;
  5. The worker's opportunity for profit or loss; and
  6. The extent of integration of the worker's services into the potential employer's business.

Weighing these six factors, the DOL found that the workers were economically independent, in part, because the employer minimally supervised the workers, allowed them to set their own hours, and allowed them to simultaneously work for a competitor. Additionally, the employer did not invest in any facilities, equipment, or helpers for the workers, or provide them with any training. Lastly, the DOL found that the workers had a substantial amount of control in determining their own level of compensation and were not integrated into the employer's business because they did not develop or maintain the virtual platform.

Based on this analysis, the DOL concluded that the workers were not employees under the FLSA, but rather were independent contractors. The DOL's letter provides employers with important insight into its current position on the proper classification of workers under the "economic reality" test of the FLSA.

If you have any questions or concerns regarding the classification of your own workers, please contact your Allen Norton & Blue attorney.

-Barron Dickinson, Associate Attorney with ANB's Tallahassee Office..