Late yesterday, on April 29, 2020, Florida’s Governor issued his Phase 1: Safe. Smart. Step-by-Step Plan for Florida’s Recovery in Executive Order 20-112 and clarifying FAQs, which will be effective 12:01 a.m. on May 4, 2020, until a new order is issued. Continue reading
With re-openings on the horizon, businesses should prepare a plan for returning employees to work. In making such plans, employers should consider the various EEO laws, the Occupational Safety and Health Act (“OSHA”), the Paycheck Protection Program (“PPP”), the Families First Coronavirus Response Act (“FFCRA”), the Family and Medical Leave Act (“FMLA”), along with employers’ own PTO/vacation policies, and more. This summary provides a quick overview of several issues that employers should consider when developing a plan for their employees to return to work.
Some employers may plan to call back in employees in stages or waves as business permits. If so, those employers should take care that they decide which employees are part of the various stages or waves based on legitimate, non-discriminatory reasons. Civil rights statutes such as Title VII of the 1964 Civil Rights Act, the Age Discrimination in Employment Act, and the Florida Civil Rights Act still apply to all employment decisions–including decisions on who to bring back to work. Employers should avoid making decisions on who to return to work based on age, disability (actual or presumed), national origin, marital status, sex, pregnancy, or other protected characteristics. Continue reading
On April 6, 2020, the U.S. Department of Labor’s (DOL) Wage and Hour Division (WHD) issued yet another series of questions and answers to provide additional guidance regarding the protections and relief offered by the new Families First Coronavirus Response Act (FFCRA). The DOL also reorganized its FFCRA questions page by categories (definitions, eligibility, coverage, application, and enforcement), in addition to its questions and answers by number.
As noted in our recent blog post, the FFCRA provides expanded paid and unpaid family and medical leave broader than the Family and Medical Leave Act of 1993 (FMLA) and paid sick leave to certain employees affected by COVID-19. In addition, it provides help for individuals and businesses impacted by the pandemic—like reimbursement through a refundable tax credit available to private employers. The FFCRA became effective April 1, 2020, and will expire at the end of the year. It is enforced by the WHD. Continue reading
On April 9, 2020, Florida’s Department of Emergency Management issued a memorandum adding “essential services” for purposes of the Safer-at-Home Executive Order 20-91, which will be effective April 3 through April 30, 2020, and was recently clarified by FAQs.
The memorandum expands the list of “essential services” in Florida to include:
- Employees at services and programs addressing mental health, substance abuse, domestic violence, and other urgent counseling – as long as social distancing guidelines are maintained;
- Certain employees necessary for maintenance and preservation of theme parks and entertainment complexes, zoological parks and facilities, and aquarium facilities, that are closed to the general public; and
- Employees at professional sports and media production with a national audience – including athletes, entertainers, production team, executive team, media team, and others necessary to facilitate including services supporting such production – only if the location is closed to the general public.
The Division of Emergency Management maintains the Governor’s Executive Order 20-91 Essential Services List online, but has not yet added these services to the list.
In compliance with the Safer-at-Home Order, Williams Parker remains dedicated to serving its clients and continues to advise and represent clients with respect to their legal matters. Our firm has launched a multidisciplinary task force of lawyers across the firm to advise on issues arising from COVID-19. This team is closely monitoring legal developments and guidance from federal, state, and local government and public health officials. For the latest updates, please visit our website.
Under the Families First Coronavirus Response Act, covered employers are now required to provide Paid Sick Leave or Expanded Family and Medical Leave to employees affected by the COVID-19 public health emergency. (See our prior coverage of the paid leave under the Families First Act.) Recently, the Department of Labor (DOL) and the Internal Revenue Service (IRS) provided guidance to employers about what notice and supporting documents employees must provide employers to obtain such leave—presuming employees qualify. Based on the above-referenced guidance, below we address common questions on the notice and documentation requirements.
*Please note that this article presumes a general familiarity with the Paid Sick Leave or Expanded Family and Medical Leave provisions of the Families First Act. For a refresher on those provisions, please review the blog post linked above.
If an employee is sick and wants to use the new Paid Sick Leave, can an employer require them to give notice?
Yes, employers may require that employees follow reasonable notice procedures when taking Paid Sick Leave.
What would be considered reasonable notice procedures?
Absent unusual circumstances, what is reasonable will depend on the facts and circumstances of each situation. Generally, it will be reasonable for an employer to require an employee to comply with the employer’s usual and customary notice and procedural requirements for requesting leave.
How soon should an employee provide notice of the need for leave?
Although the DOL encourages employee to provide notice as soon as practicable, employees can provide notice up to the day after the need becomes apparent.
What if the employee fails to give notice?
An employer should notify the employee that they failed to give notice. Before denying the leave request, the employer should provide the employee a chance to submit the required information and documentation.
Who can give the notice: the employee or someone on their behalf?
An employee or an employee’s spokesperson (e.g., spouse, adult family member, or another responsible party) – if the employee is unable to do so personally – can notify an employer about the need for leave.
What should this notice contain?
It is reasonable for an employer to require verbal notice along with enough information to determine if the requested leave qualifies for either Paid Sick Leave or Expanded Family and Medical Leave.
Can an employer require documentation from the employee to support the need for leave?
Yes, according to DOL guidance, an employer may require documentation but only the documents identified in the regulations.
What information and documents may an employer require from an employee?
Based on current guidance from the DOL and the IRS, an employer can request the following information and documents to support a request for leave:
- Employee’s name;
- Date(s) for which leave is requested;
- Qualifying reason for the leave;
- An oral or written statement that the employee is unable to work, including through telework, because of the qualified reason for leave; and,
- Depending on the qualifying reason for the leave, the employee must also provide the following information or documents:
- If the leave is due to a qualifying quarantine or isolation order, then the employee must provide the name of the federal, state, or local government entity that issued such order;
- If the leave is because the employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19, then the employee must provide the name of the physician that issued the self-quarantine guidance;
- If the leave is because the employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis from a health care provider; it is uncertain what additional information an employee must provide since the regulations, at the moment, do not speak to this issue.
- If the leave is because the employee caring for an individual who is subject to a qualifying quarantine or isolation order, then the employee must provide the name of the federal, state, or local government entity that issued such order;
- If the leave is because the employee caring for an individual who has been advised by a health care provider to self-quarantine due to concerns related to COVID-19, then the employee must provide the name of the physician that issued the self-quarantine guidance;
- If the leave is because the employee is caring for his or her child whose school or child care options have been closed or made unavailable for any time related to COVID-19, then the employee must provide:
- The name of their son or daughter being cared for;
- The name of the school, place of childcare, or childcare provider that has closed or become unavailable;
- A representation that no other suitable person will be caring for the son or daughter during the period for which the employee takes Paid Sick Leave or Expanded Family and Medical Leave; and,
- Concerning the employee’s inability to work or telework because of a need to provide care for a child older than fourteen during daylight hours, a statement that special circumstances exist requiring the employee to provide such care.
Can an employer authenticate the information supporting the employee’s request for leave?
The newest DOL regulations do not directly address this question. However, because the new laws expand the FMLA, there is an argument that DOL guidance on medical certification under the regular FMLA would apply to these new leaves—albeit the original regulations are not completely analogous.
Under the original regulations, employers’ representatives may contact a health care provider to clarify or authenticate that provider’s certification for the need for leave. It is important to note that a human resources professional, a leave administrator, or a management official must be the one to make the contact. An employee’s direct supervisor should never contact the employee’s health care provider to obtain authentication. However, to properly conduct an authentication, employers’ representatives need to provide the health care provider with a copy of the certification and confirming that the information contained on the certification form was completed or authorized by the health care provider who signed the document.
With the Paid Sick Leave or Expanded Family and Medical Leave, there is no signed certification that employers may authenticate in a manners similar to the original regulations. It may be that an authorized employer representative may contact one of the entities or individuals to verbally confirm that the information the employee provided because those steps match the spirit of the prior regulations—presuming no additional questions are asked.
Even if that is the case, there are likely practical concerns. Government agencies and health care providers are already taxed during this public health emergency; therefore, obtaining a timely response may be challenging.
What should an employer do if the employee provides the notice and supporting information verbally?
Employers likely should prepare a memorandum for the employee’s file confirming all of the information listed above along with the name of the employer’s representative who verbally received the notice and supporting information. Employers could then follow up with the employee for any further supporting documents to allow employers to obtain applicable tax credits.
Are there any other documents will an employer needs to maintain?
Yes, according to the IRS, it appears that employers—to support any tax credits—will need to maintain the records of the written or verbal statements described above. Additionally, the employer should maintain:
- Documents showing how the employer determined the amount of qualified sick leave or family leave wages paid to the employee—these documents would likely include the supporting payroll data along with a memorandum showing how the wage calculations were derived. (Remember that employees do not necessarily receive full compensation while on Paid Sick Leave or Expanded Family and Medical Leave under the Families First Act.)
- Documents showing how the employer determined the amount of qualified health plan expenses that the employer allocated to wages. (See IRS guidance at Question 31 for methods to compute this allocation.)
- Copies of any completed Forms 7200, Advance of Employer Credits Due To COVID-19, the employer submitted to the IRS.
- Copies of the completed Forms 941, Employer’s Quarterly Federal Tax Return, that the employer submitted to the IRS (or, for employers that use third party payers to meet their employment tax obligations, records of information provided to the third party payer regarding the employer’s entitlement to the credit claimed on Form 941).
How long will an employer need to maintain these documents?
An employer should maintain these records for at least four years.
Williams Parker has launched a multidisciplinary task force of lawyers across the firm to advise on issues arising from COVID-19. This team is closely monitoring legal developments and guidance from federal, state, and local government and public health officials. For the latest updates, please visit our website.
On April 8, the Florida Department of Economic Opportunity announced a new, mobile-friendly online application for Reemployment Assistance. For information of how to use the mobile service, visit floridajobs.org.
An update to this post was published April 22
On April 6, 2020, the U.S. Department of Labor’s (DOL) Wage and Hour Division (WHD) published a temporary rule regarding the new Families First Coronavirus Response Act (FFCRA). It contains temporary regulations to implement the FFCRA, which are effective from April 2, 2020, through December 31, 2020. In addition to the actual regulations, which are found in part 826 of title 29 of the Code of Federal Regulations, the rule contains background and discussion sections which provide additional guidance. The temporary regulations address many of the issues discussed in the DOL’s series of questions and answers that it has been publishing regarding the FFCRA.
Before the publication of the temporary rule, on April 1, 2020, the DOL’s WHD published another series of questions and answers to provide additional guidance regarding the protections and relief offered by the FFCRA.
As noted in our recent blog post, the FFCRA provides expanded paid and unpaid family and medical leave broader than the current Family and Medical Leave Act (FMLA) and paid sick leave to certain employees affected by COVID-19. In addition, it provides help for individuals and businesses impacted by the pandemic—like reimbursement through a refundable tax credit available to private employers. Continue reading
We invite you to join our partner Jennifer Fowler-Hermes for a virtual presentation hosted by the Lakewood Ranch Business Alliance this Wednesday, April 8.
The program will answer questions around the new aid packages available to businesses as a result of the COVID-19 crisis. With the rollout of these new programs, business owners are scrambling to quickly understand the details surrounding the offered benefits, applications processes, and eligibility requirements. Jennifer will share guidance on how employers should approach the situation from an HR perspective and will be joined by a partner with Kerkering Barberio to provide insight on the tax and accounting implications.
Participants may join by video or phone. For more details and to register, visit LWRBA.
On March 28, 2020, Florida agreed to participate in the unemployment provisions of the Coronavirus Aid, Relief, and Economic Security (CARES) Act, known as the Relief for Workers Affected by the Coronavirus (RWAC). On April 2, 2020, the Department of Labor issued guidance as well as a chart summarizing the different programs and the length of time the programs will be in effect. We summarize the major highlights for Florida employers below.
Before RWAC, the maximum unemployment benefit for those that would normally qualify for benefits in Florida was $275 a week, paid bi-weekly. Generally, the maximum number of weeks someone can receive benefits is 12 weeks. This 12-week period may be extended if Florida’s unemployment rate increases above 5 percent. If this occurs, an additional week of eligibility is added for every half percent of increase above the 5 percent unemployment rate. Even so, when the additional weeks of eligibility are added to the initial 12 weeks, total benefits are still capped at 23 weeks.
Now, after RWAC and during the COVID-19 public health emergency, the maximum weekly benefits and maximum weeks of available benefits are temporarily increased. For those that would otherwise qualify for benefits, the maximum weekly benefit is a total of $875 a week through July 31, 2020. The first $275 is the normal maximum benefits under Florida’s program. An additional $600 is added through the Federal Pandemic Unemployment Compensation (FPUC) program. For those persons that would not ordinarily qualify for benefits in Florida, the maximum benefit is 50 percent of the average benefit in Florida plus the $600 from FPUC. Continue reading
An update to this post was published April 15.
Late on Friday, Florida’s Governor issued clarifications through a List of FAQs regarding the Safer-at-Home Executive Order 20-91, which became effective at 12:01 a.m. April 3, 2020, as noted in our recent blog post and is currently scheduled to expire on April 30, 2020.
The FAQs explained that notwithstanding that persons in Florida who are senior citizens or individuals with a significant underlying medical condition are ordered to “stay at home and take all measures to limit the risk of exposure to COVID-19,” they may leave their homes as necessary to obtain or provide essential services or conduct essential activities, including but not limited to going to work at an essential service. Continue reading