Author Archives: Jennifer Fowler-Hermes

Jennifer Fowler-Hermes

About Jennifer Fowler-Hermes

Jennifer is a board certified expert in labor and employment law. She is also a Florida Supreme Court certified circuit mediator. She represents private, public, for-profit, and not-for-profit employers in a wide range of matters. Jennifer not only represents both large and small employers in litigation matters, but she also assists employers in managing risks to avoid litigation. She can be contacted at jfowler-hermes@williamsparker.com or (941) 552-2558.

The American Rescue Plan Act (“ARPA”) and COBRA Assistance

The American Rescue Plan Act (“ARPA”) signed into law on March 11, 2021, creates a 100 percent subsidy for COBRA coverage premiums from April 1, 2021, through September 30, 2021, and allows for COBRA enrollment even if a person declined coverage earlier or if their enrollment window closed. These provisions in ARPA are also applicable to state continuation of coverage programs, often referred to as mini-COBRA. These programs are generally available to employees of small employers (fewer than 20 employees) or other entities not subject to COBRA. Mini-COBRA programs are not uniform across states. Businesses should consult with their tax and benefits specialists for further detail and guidance.

Further details regarding the ARPA and provisions applicable to employers will be posted in the next few days.

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Just the Facts on the Vaccine: What Employers Need to Know

Join the Lakewood Ranch Business Alliance for an interactive, virtual Q&A session featuring Williams Parker labor and employment attorney Jennifer Fowler-Hermes.

Jennifer will provide employers with an update on what they need to know about providing the COVID-19 vaccine to employees—those who want to take it and those who don’t.

Wednesday, February 10, 2021
8:00 – 9:00 a.m.
via Zoom
No cost to members or non-members

Register at lwrba.org/events

Participation is encouraged, and questions may be submitted in advance.

Jennifer Fowler-Hermes is a partner and chair of the Labor & Employment practice at Williams Parker. She is a board certified labor and employment attorney with over 20 years of experience helping businesses effectively navigate an array of labor and employment matters. In addition to advocating for clients in litigation matters, Jennifer provides advice and guidance regarding day-to-day employment-related business decisions; delivers management training; drafts employment-related documents, contracts, and policies; collaborates with clients in the management of a crisis (such as COVID-19); coordinates employer responses to agency investigations; and leads management-side collective bargaining teams. She is also a Qualified Arbitrator for all Florida Courts and a Florida Supreme Court Certified Civil Circuit Mediator.

Florida Phase 3: Employees Returning to Work and What It Means for Employers

With Florida’s governor implementing Phase 3 of re-opening the state, businesses should update their COVID-19 response plans and anticipate issues that may arise as more employees are permitted to return to work. Among other provisions, Executive Order 20-244 provides for:

  • Unrestricted staffing of worksites and implementation of the final phasing-in of employees returning to work;
  • Continued prudent and practical measures to ensure employees do not come to the worksite if they believe they are infected with COVID-19 or show symptoms of influenza-like illness;
  • Resumption of nonessential travel and adherence to U.S. Centers for Disease Control and Prevention guidelines regarding isolation following travel; and,
  • Retail businesses operating at full capacity.

With more employees returning to the workplace, businesses must continue to evaluate the safety measures in place to protect employees and customers–including continuing to monitor CDC and OSHA guidance regarding recommended precautions. Because employees have been working under alternative arrangements (or not working at all), as they return, businesses should remind employees of important policies governing the workplace, such as anti-discrimination and code of conduct policies.

Furthermore, supervisors should be prepared to answer employee questions or know who will have appropriate answers to questions about the employer’s response plan and continued employee performance expectations. And, although many restrictions have been lifted, there will still be issues relating to safety and leave of absences under both the Family First Coronavirus Relief Act and the Family and Medical Leave Act. Businesses should also be prepared for employee requests for accommodation–including requests to continue to work remotely. Finally, businesses should anticipate employees refusing to comply with company safety requirements (such as mask wearing) and be prepared to respond.

Businesses should not assume that supervisory personnel will be prepared to handle the foregoing issues. Instead, businesses should prepare supervisors and have systems in place to provide support to them. In addition to reminding supervisors about important policies, this is a very good time to remind them about the importance of documentation. It is anticipated that there will be an uptick in employment-related litigation as a result of COVID-19 and employer decisions relating to COVID-19. Making sure that supervisors are prepared to accurately and appropriately document issues relating to their subordinates may prove invaluable. If supervisors have not been trained on how to prepare accurate, clear, complete, and factual documents that will be helpful in the event there is litigation, it may very well be the time to implement a training program. As businesses adjust to the new work environment,  many are turning to remote training options, such as Zoom or other virtual conference programs to make sure their supervisors are prepared.

Important Changes to FFCRA Leave Requirements – Including a Change to the Definition of Health Care Provider

On September 11, 2020, the U.S. Department of Labor (DOL) issued revised regulations addressing the availability of employee leave under the Families First Coronavirus Response Act (FFCRA). These regulations were issued in response to a federal court finding that the DOL exceeded its authority in its original regulations.

The FFCRA, created in response to the COVID-19 public health emergency, requires employers with fewer than 500 employees to provide their employees with paid sick leave (termed Emergency Paid Sick Leave or “EPSL”) and expanded family medical leave (referred to as Emergency Family Medical Leave of “EFML”). There are exemptions to the leave requirements.

In early spring, the DOL issued its initial regulations addressing a host of questions regarding the application and interpretation of the FFCRA. In those regulations the DOL clarified which employees counted as “health care providers” for purposes of one of the exemptions to the leave requirements. Several of the DOL’s regulations were challenged in federal court in New York. Recently, that court ruled that the DOL’s rules on the following topics were unlawful:

(1)  the broad definition of an employee who is a “health care provider”;

(2)  the requirement that an employer must consent to intermittent leave under FFCRA;

(3)  the requirement that an employer must have available work before an employee can receive either EPSL or EFML, which DOL had termed the “work availability requirement”; and

(4)  the types of notice and documentation an employee must provide before taking FFCRA leave.

Below is a summary of how the DOL addressed the foregoing issues.

Definition of Health Care

The DOL narrowed the definition of “health care provider.” Previously, an employee could be considered a “health care provider” for purposes of the exemption, if the employer was a health care provider—regardless of what role the employee played within the organization. Now, the term “health care provider” is defined as those employees who are already defined as “health care providers” for purposes of providing certifications under existing FMLA regulations, along with those employees who provide diagnostic, preventive, treatment or other services that are integrated with and necessary to health care and the provision of patient care, and if not provided, would adversely impact patient care.

The revised regulations clarify the types of services that are considered health care services or the provision of patient care:

  • Diagnostic: Includes taking or processing samples, performing, or assisting in x-rays or other diagnostic tests or procedures, and interpreting test or procedure results.
  • Preventive: Includes screenings, check-ups, and counseling to prevent illnesses, disease, or other health problems.
  • Treatment: Includes performing surgery or other invasive or physical interventions, prescribing medication, providing, or administering prescribed medication, physical therapy, and providing or assisting in breathing treatments.
  • Integrated: Those services that are “integrated with and necessary to diagnostic, preventive, or treatment services and, if not provided, would adversely impact patient care, including bathing, dressing, hand feeding, taking vital signs, setting up medical equipment for procedures, and transporting patients and samples.”

Beyond outlining the characteristics, the revised regulations provide a helpful, non-exhaustive list of exempt employees:

  • nurses, nurse assistants, medical technicians, and others directly providing diagnostic, preventive, treatment, or other integrated services;
  • employees providing such services “under the supervision, order, or direction of, or providing direct assistance to” a health care provider; and
  • employees who are “otherwise integrated into and necessary to the provision of health care services,” such as laboratory technicians who process test results necessary to diagnoses and treatment.

Conversely, the following employees should no longer be considered exempt from FFCRA leave entitlement:

  • IT professionals,
  • building maintenance staff,
  • human resources personnel,
  • cooks,
  • food services workers,
  • records managers,
  • consultants, and
  • billers.

Work Availability Requirement

The DOL did not change its position on the work availability requirement. DOL maintains its position that for an employee to take FFCRA leave, an employer must have work available for the employee to perform when the need for FFCRA leave occurs. If the employee is not scheduled to work—whether due to a furlough, business closure, or otherwise—there is no work from which to take leave.

The DOL did clarify that the employee’s FFCRA reason for leave must be the sole reason that he or she is not working. An employer cannot use work unavailability as a pretense to prevent an employee from taking EPSL of EFML leave.

Definition of “Intermittent Leave

Similarly, the DOL has not substantially altered its intermittent leave rule, even though the district court rejected the original regulation. The new regulations detail additional analysis for why the DOL reached the conclusion it did. A key point the DOL raises is that an employer should “balance the employee’s need for leave with the employer’s interest in avoiding disruptions by requiring agreement by the employer for the employee to take intermittent leave.”

Documentation and Notice Requirements

The DOL slightly adjusted the documentation rules to confirm that, like under the FMLA, an employee is not required to provide documentation before leave in every situation. Rather, an employee may provide documentation as soon as practicable.

Additionally, the DOL clarified that employees must provide the employer with notice as soon as practical when they seek EFML leave to care for a child whose school or place of care is closed. Thus, when an employee receives notice that school will be closed, the employee should notify their employer about the need for leave.

Concluding Thoughts

The change to the scope of the health care provider exemption is the most important change about which employers will have to address. Those in the health care industry should perform an analysis of employees’ job classifications to determine whether certain employees remain eligible to be exempt as “health care providers” under the revised definition. In light of the revised regulations, all employers should review their current leave practices and adjust accordingly.

Aside from the changes to the definition of health care provider, the revised regulations do not fundamentally change the DOL’s prior interpretation. Instead, the changes provide further clarification as to the basis for the DOL’s position. We suspect that the DOL promulgated these new regulations, in part, to support its position in later legal fights.

Attorney John Getty and legal clerk Kimbrell Hines contributed to this post.

Getting Back to Business – Handling Employees’ Return to Work

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

The Department of Labor Provides a Summary Explanation of Unemployment Benefits under the CARES Act

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

IRS Guidance Regarding Tax Credits for Paid Leaves; the Families First Coronavirus Response Act; and the Coronavirus Aid, Relief, and Economic Security Act

The IRS has provided some guidance regarding the process for employers to obtain the tax credits provided for in the Families First Coronavirus Response Act (“FFCRA”) and the Coronavirus Aid, Relief, and Economic Security (“CARES”) Act. The FFCRA tax credits are to reimburse small and midsize employers for amounts paid to employees that qualify for and use the new paid sick and/or paid family leave provisions of the FFCRA. The guidance for these credits, which is presented as Basic Frequently Asked Questions (“FAQ”), provides details on how employers start claiming the credits, what documentation the employer must retain to substantiate eligibility, and how to determine the amount of the tax credits for qualified leave wages. The FAQ also briefly addresses the interplay between the FFCRA tax credits and the CARES tax credit. View the FAQ.

Similar guidance is available for the CARES Act’s Employee Retention Credit. This credit is 50% of up to $10,000 in wages paid by an eligible employer whose business has suffered financially due to COVID-19 and is available to all eligible employers regardless of size. Employers who have taken a small business loan under the Act’s Paycheck Protection Program are not, however, entitled to this credit. More information and an FAQ is available from the IRS.

Government employers are not entitled to either the FFCRA tax credits or the CARES tax credit.

Williams Parker has launched a multidisciplinary task force of lawyers across the firm to advise on issues arising from COVID-19 and to provide guidance for affected clients. 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.

Corporate and tax attorney Christina J. Strasser contributed to this post. 

Unemployment Provisions in the Coronavirus Aid, Relief, and Economic Security Act

As businesses in Florida make decisions on how to move forward during the COVID-19 public health emergency, many businesses are weighing the effects of a layoff or furlough on their employees’ ability to secure unemployment benefits. The Coronavirus Aid, Relief, and Economic Security (“CARES”) Act—which was signed into law the afternoon of March 27, 2020—includes provisions that address these issues. These provisions are referred to as the Relief for Workers Affected by Coronavirus Act.

Before addressing how the CARES Act may temporarily affect unemployment, it is important to understand what steps the State of Florida has already taken. At this stage, Florida has temporary made individuals who have a COVID-19-related unemployment situation eligible for reemployment assistance (the name Florida gives to unemployment benefits). Specifically, under current Florida guidance, the following persons are currently eligible for COVID-19 unemployment benefits:

  • People ordered to quarantine by a medical professional
  • Those laid off or sent home without pay for an extended period by their employer due to COVID-19
  • Those caring for an immediate family member with the virus.

Continue reading

Important Update for Healthcare Providers: Federal and State Agencies Take Actions to Help Healthcare Facilities Continue to Provide Care

When the Families First Coronavirus Response Act (“FFCRA”) was initially passed, the limited definition of healthcare provider caused anxiety for many long term-care facilities and hospitals, as the newly enacted leaves were anticipated to further impact the already difficult task of ensuring that sufficient staff is available to provide necessary care.

The Department of Labor, Wage and Hour Division Provides Further Clarification Regarding the Application of the FFCRA

On March 28, 2020, the Department of Labor explained that, for purposes of qualifying for the exemption to the leave mandates, the definition of healthcare provider should be interpreted more broadly than in other areas of the FFCRA or the FMLA.

Specifically, the DOL explained that:

For the purposes of employees who may be exempted from paid sick leave or expanded family and medical leave by their employer under the FFCRA, a health care provider is anyone employed at 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 institution, employer, or entity. This includes any permanent or temporary institution, facility, location, or site where medical services are provided that are similar to such institutions.

It expanded the definition even further to include businesses that provide necessary support and services to healthcare facilities:

This definition includes any individual employed by an entity that contracts with any of the above institutions, employers, or entities institutions to provide services or to maintain the operation of the facility. This also includes anyone employed by any entity that provides medical services, produces medical products, or is otherwise involved in the making of COVID-19 related medical equipment, tests, drugs, vaccines, diagnostic vehicles, or treatments. This also includes any individual that the highest official of a state or territory, including the District of Columbia, determines is a health care provider necessary for that state’s or territory’s or the District of Columbia’s response to COVID-19.

Moreover, the DOL provided a definition of emergency responder. This definition is broad enough that many healthcare facilities may be deemed both a Health Care Provider and an Emergency Responder:

For the purposes of employees who may be excluded from paid sick leave or expanded family and medical leave by their employer under the FFCRA, an emergency responder is an employee who is necessary for the provision of transport, care, health care, comfort, and nutrition of such patients, or whose services are otherwise needed to limit the spread of COVID-19. This includes but is not limited to military or national guard, law enforcement officers, correctional institution personnel, fire fighters, emergency medical services personnel, physicians, nurses, public health personnel, emergency medical technicians, paramedics, emergency management personnel, 911 operators, public works personnel, and persons with skills or training in operating specialized equipment or other skills needed to provide aid in a declared emergency as well as individuals who work for such facilities employing these individuals and whose work is necessary to maintain the operation of the facility. This also includes any individual that the highest official of a state or territory, including the District of Columbia, determines is an emergency responder necessary for that state’s or territory’s or the District of Columbia’s response to COVID-19.

In its clarification, the DOL repeatedly encourages employers to be judicious when using these definitions to exempt healthcare providers from the provisions of the FFCRA.

Although these definitions are not currently set forth in the statute, and are not regulations issued by the DOL, the DOL’s interpretation should considered persuasive until such time that it does releases regulations as authorized by the FFCRA.

Other clarifications regarding the interpretation of the FFCRA can be found at dol.gov.

The Agency for Health Care Administration (“AHCA”) Temporarily Waives Certain Requirements for Staff Caring for Residents

At the state level AHCA approved the Florida Health Care Association’s. The FHCA’s proposal to temporarily allow Personal Care Attendants to perform resident care procedures currently delivered by Certified Nursing Assistants. One purpose of this move it to provide nursing centers with additional staff to care for residents during the period of the State of Emergency. The program is effective March 28 through May 1, 2020, or until such time AHCA finds it necessary to extend or discontinue the program to meet the needs of the crisis.

For additional information regarding the FFCRA and other information on issues arising from the Coronavirus, please visitour resource page.

Jennifer Fowler-Hermes
Jfowler-hermes@williamsparker.com
(941) 552-2558