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.

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

The Notice Required by the Families First Coronavirus Response Act is Now Available for Download

This afternoon the U.S. Department of Labor’s Wage and Hour Division made the Notice that employers covered under the Families First Coronavirus Response Act (“FFCRA”) are required to post available on its website. There is a special notice for federal employees.

In addition, clarification was provided on how to post notices if employees are working remotely, whether posting in other languages is required, and where to check for revisions to the notice. The following questions and answers address these and other questions that may arise regarding the posting requirement in the FFCRA.

1. Where do I post this notice? Since most of my workforce is teleworking, where do I electronically “post” this notice?
Each covered employer must post a notice of the Families First Coronavirus Response Act (FFCRA) requirements in a conspicuous place on its premises. An employer may satisfy this requirement by emailing or direct mailing this notice to employees, or posting this notice on an employee information internal or external website.

2. Do I have to post this notice in other languages that my employees speak? Where can I get the notice in other languages?
You are not required to post this notice in multiple languages, but the Department of Labor (Department) is working to translate it into other languages.

3. Do I have to share this notice with recently laid-off individuals?
No, the FFCRA requirements explained on this notice apply only to current employees.

4. Do I have to share this notice with new job applicants?
No, the FFRCA requirements apply only to current employees. Employers are under no obligation to provide the notice of those requirements to prospective employees.

5. Do I have to give notice of the FFCRA requirements to new hires?
Yes, if you hire a job applicant, you must convey this notice to them, either by email, direct mail, or by posting this notice on the premises or on an employee information internal or external website.

6. If my state provides greater protections than the FFCRA, do I still have to post this notice?
Yes, all covered employers must post this notice regardless of whether their state requires greater protections. The employer must comply with both federal and state law.

7. I am a small business owner. Do I have to post this notice?
Yes. All employers covered by the paid sick leave and expanded family and medical leave provisions of the FFCRA (i.e., certain public sector employers and private sector employers with fewer than 500 employees) are required to post this notice.

8. How do I know if I have the most up-to-date notice? Will there be updates to this notice in the future?
The most recent version of this notice was issued on March 25, 2020. Check the Wage and Hour Division’s website or sign up for Key News Alerts to ensure that you remain current with all notice requirements.

9. Our employees must report to our main office headquarters each morning and then go off to work at our different worksite locations. Do we have to post this notice at all of our different worksite locations?
The notice needs to be displayed in a conspicuous place where employees can see it. If they are able to see it at the main office, it is not necessary to display the notice at your different worksite locations.

10. I am running out of wall space. Can I put the required notices in a binder that I put on the wall?
No, you cannot put federal notices in a binder. Generally, employers must display federal notices in a conspicuous place where they are easily visible to all employees—the intended audience.

11. We have break rooms on each floor in our building. Do I have to post notices in each break room on each floor or can I just post them in the lunchroom?
If all of your employees regularly visit the lunchroom, then you can post all required notices there. If not, then you can post the notices in the break rooms on each floor or in another location where they can easily be seen by employees on each floor.

We are available to assist employers and answer questions related to the FFCRA and other pandemic-related concerns.

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

Leave for Family of Members of the Armed Forces Deployed to a Foreign Country (Part V of FMLA Series)

In light of recent military deployments, employers should be reminded of Qualifying Exigency Leave provided for by the Family and Medical Leave Act (FMLA). We have been posting a series about navigating the complex maze that is the FMLA. At this time, we are now taking a turn down this multicursal puzzle to address the first of two specific types of leaves that are only available for family members of covered service members, the Qualifying Exigency Leave. In Part VI of this series, we will address leave to care for a covered service member with a serious injury or illness.

Eligible employees may take up to 12 weeks of FMLA leave because of a qualifying exigency arising out of the fact that the employee’s spouse, child, or parent is a military member on covered active duty (or has been notified of an impending call or order to active duty status). This leave is provided for one or more of the following reasons:

  1. Short-notice deployment
  2. Military events and related activities
  3. Childcare and school activities
  4. Financial and legal arrangements
  5. Counseling
  6. Rest and recuperation
  7. Post-deployment activities
  8. Parental care
  9. Additional activities

What is covered active status?

This means the deployment of the member with the Armed Forces to a foreign country under a Federal call or order to active duty in support of a contingency operation during a war or national emergency declared by the President or Congress.

How can an employer verify the military member’s covered active duty status?

The employer can contact the Department of Defense.

When a parent is seeking leave related to a child’s active military duty, is there an age limit?

No.

What is a short-notice deployment?

It is when the military member is notified of an impending call to covered active duty seven or less calendar days from the date of deployment.

What events and related activities qualify for exigency leave?

Any official ceremony, program, or event sponsored by the military that is related to the covered active duty or call to covered active duty status of the military member; and to attend family support or assistance programs and informational briefings sponsored or promoted by the military, military service organizations, or the American Red Cross that are related to the covered active duty or call to covered active duty status of the military member.

Similarly, what childcare and school activities qualify for exigency leave?

  • Arranging for alternative childcare for a child of the military member when the covered active duty or call to covered active duty necessitates a change in childcare arrangement
  • Providing childcare for a child of the military member on an urgent, immediate need basis (but not routine everyday basis)
  • Enrolling or transferring a child of the military member to a new school or day care facility
  • Attending meetings with staff at a school or daycare facility, such as meetings with school officials regarding disciplinary measures, parent-teacher conferences, and meetings with school counselors

Can leave taken for childcare and school activities apply to adult children of military members?

No, for the purposes of these qualifying exigencies, the child of the military member must be either under the age of 18 or, if over 18, incapable of self care because of a mental or physical disability at the time that FMLA leave is to commence.

What type of financial or legal arrangements are covered?

Those required to address the military member’s absence while on covered active duty or call to covered active duty status, such as financial and healthcare powers of attorney, transferring bank account signature authority, obtaining military ID cards, or preparing/updating a will or living trust.

Is there a limit to the amount of exigency leave that can be taken for rest and recuperation?

Yes. The limit is 15 calendar days to spend time with a military member who is on short term temporary Rest and Recuperation leave during deployment.

Are there requirements on who can step in to assist with the care of a military member’s parent?

Yes. Although the employee taking leave does not need to be related to the military member’s parent, the military member must be the parent, spouse, or child of the person taking leave.

Does entitlement to exigency leave end when the deployment is over?

No, arrival ceremonies, reintegration briefings and events, and any other official ceremony or program sponsored by the military are covered if within 90 days following the termination of the military member’s covered active duty status. Further, issues that arise from the death of a military member while on covered active duty status, such as making funeral arrangements and attending funeral services are also covered.

What if there are other issues that arise from a military member’s covered active duty that are not specifically spelled out in the regulations?

They may be covered, if the employer and employee agree that such leave qualifies as an exigency and agree to both the timing and duration of such leave.

As noted above, the first post in our series on FMLA summarized the steps an employer should follow when dealing with the FMLA labyrinth and addressed which employers are covered by the Act. The second post explained which employees are eligible for FMLA leave. The third post addressed FMLA leave for the birth or adoption of a child. The fourth post  addressed issues related to an employee taking leave for his or a family member’s serious health condition. The next post in the FMLA series will address to care for a covered service member with a serious injury or illness.

Jennifer Fowler-Hermes
jfowler-hermes@williamsparker.com
941-552-2558

Florida’s 2020 Minimum Wage Increase

On January 1, 2020, Florida’s minimum wage increased from $8.46 to $8.56 an hour ($12.84 for overtime). If employers have not already done so, they should make appropriate pay adjustments for their minimum wage earners. Employers with minimum wage employees (including tipped employees) that have already issued their first payroll for the year without this ten-cent adjustment, should remedy any underpayment as soon as possible but no later than the next payroll by providing the pay difference, including any additional overtime, for the prior workweek.

Failing to pay non-exempt employees Florida’s statutory minimum wage can result in claims against employers pursuant to Section 24, Article X of the State Constitution and Section 448.110, Florida Statutes. The maximum tip credit ($3.02) that can be taken by Florida employers with tipped employees will remain the same, but the direct wage paid to tipped employees will increase from $5.44 to $5.54 an hour.

In addition to raising the minimum wage, Florida employers are required to post a minimum wage notice in a conspicuous and accessible location. You can download the 2020 Florida Minimum Wage Notice from the Florida Department of Economic Opportunity’s website. This notice is in addition to the requirement that employers post a notice regarding the federal minimum wage (which has not been increased). There will also be commercially available Florida-specific “all-in-one” posters that satisfy both the federal and state notice requirements.

Jennifer Fowler-Hermes
jfowler-hermes@williamsparker.com
941-552-2558

A Reminder on How to Avoid the Naughty List When it Comes to Office Holiday Parties

Although the Mad Men days of the sexy secretary sitting on Santa’s lap (the boss’s lap) with his arms wrapped around her while both are drinking a dry martini SHOULD be a vestige of the past, there are those that believe that “keep your hands to yourself” does not apply to them.  And, there are those that understand the “hands-off” rule, yet when under the influence of alcohol, find their inhibitions on the copy room floor.

This year, with stories of sexual harassment and abuse continuing to make headlines (think Tony Robbins, Bryan Singer, and Les Moonves), it is more important than ever for employers to consider the potential risks associated with any planned celebration. Employers should keep in mind that office policies that are generally recognized in the workplace sometimes are forgotten when there is a party, especially a party with libations. A holiday office party can embolden inappropriate behavior, from simple innuendos to unwelcome touching that could lead to claims of sexual harassment. The office holiday party can be a quagmire of potential employment issues, even beyond sexual harassment. These issues can include claims due to on-the-job injuries (workers compensation), unpaid wages for attending the party (the Fair Labor Standards Act), or other types of workplace harassment or discrimination (e.g. religion).

As you prepare for your office party, consider whether alcohol should be available, as most issues arise due to someone bending the elbow a bit too much. If you do decide to provide spirits make sure you have someone (a designated responsible adult) that is watching to ensure that your workforce does not get too “relaxed” and cross the line. Possibly limit how much alcohol is served and make sure any employee that drinks a little too much has a ride home. Evaluate in advance whether the party is going to be mandatory or not. If its voluntary and employees do not feel compelled to attend, then employers are not required to compensate employees for their attendance. Review the plans for the party in advance to see if there are any activities that could be considered inappropriate or offensive to members of any protected class.  Finally, make sure that employees understand that the company’s policies and procedures, especially those related to conduct, are still in effect at the party. Most parties are benign and conclude with no real issues to speak of, but you don’t want to be the exception to the rule. You do not want your CEO or VP added to the naughty list.

Jennifer Fowler-Hermes
jfowler-hermes@williamsparker.com
941-552-2558