Author Archives: John Getty

John Getty

About John Getty

John focuses in the area of labor and employment law. He represents employers regarding discrimination claims, wage and hour litigation, and investigations by regulatory agencies such as the Department of Labor and the Equal Employment Opportunity Commission. John holds an extensive background in civil litigation, representing clients before state, federal, and administrative courts. He can be reached at or (941) 329-6622.

Documents Employers Should Keep for COVID-19 Related Paid Leave

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:

  1. Employee’s name;
  2. Date(s) for which leave is requested;
  3. Qualifying reason for the leave;
  4. An oral or written statement that the employee is unable to work, including through telework, because of the qualified reason for leave; and,
  5. 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:

  1. 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.)
  2. 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.)
  3. Copies of any completed Forms 7200, Advance of Employer Credits Due To COVID-19, the employer submitted to the IRS.
  4. 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.

UPDATED: Families First Coronavirus Response Act: Employment Law Guidance Specific to Healthcare Providers





This post was updated March 29, 2020. Updates are shown in red. 

This post discusses the changes to the Family and Medical Leave Act (“FMLA”) created by the recently passed Families First Coronavirus Response Act for employers in the healthcare industry. For information about potential business financial assistance and tax issues related to the COVID-19 coronavirus (“COVID-19”) epidemic, make sure to review our firm’s Business and Tax Blog, which is being updated to identify opportunities for businesses.

We will continue to update this post as there are new developments.

What is in this new Families First Act?
The Families First Act requires that in the face of the COVID-19 epidemic, covered employers must provide certain paid FMLA and sick leave to certain private employers with fewer than 500 employees and public employers.

When does the new Families First Act go into effect?
The new rules go into effect on April 1, 2020.

Are there any different rules for employers who operate in the healthcare industry?
To some extent yes. The Families First Act may allow an employer of an employee who is a “healthcare provider” or “emergency responder” to elect to exclude that employee from the application of the paid FMLA and sick leave portions of the law.

Does this law mean that each employee of an employer who operates in the healthcare industry is exempt from these new leave rights?
At the moment, no. It would be consistent with the Families First Act’s purpose to include in the definition of healthcare provider (and, thus, the exemption) all employees needed by the “healthcare provider” or “emergency responder” to provide care during the public health emergency. However, under the definition discussed below, it does not appear that an employer can elect to exempt any employee other than someone who would be considered a “healthcare provider” or “emergency responder” unless the Department of Labor (“DOL”) expands the definition. Thus, for the moment, employees who would not be considered “healthcare providers” or “emergency responders,” such as receptionists, cleaning staff, bookkeepers, or other office staff members, are not exempted from this law.


Which employees would be considered a “healthcare provider”? (Updated March 29, 2020)
Based on this new Families First Act’s text, the FMLA’s prior definition of who is a “healthcare provider” applied. This definition was usually narrow and did not effectuate the purpose of the act. On March 28, 2020, the DOL provided clarification in response to question 56 of its Questions and Answers, and stated:

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.

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.

Although this definition is not currently set forth in the FFCRA, and is not yet included in regulations issued by the DOL, this guidance from the DOL should considered persuasive until such time that regulations are released by the DOL.

What about CNAs, Nurses, Activities Directors, Physical Therapists, and other individuals who directly interact and provide care to patients? (Updated March 29, 2020)
Based on the DOL’s March 28, 2020, response to who may be excluded by their employer from paid sick leave and/or expanded family and medical leave, such persons may be excluded. Keeping in mind that the DOL has strongly encouraged employers to be judicious when using this definition to exempt healthcare providers from the provisions of the FFCRA.

Does this law mean that each employee of an employer who operates in the healthcare industry may be exempt from these new leave rights? (Updated March 29, 2020)
Yes. However, the DOL has strongly encouraged employers to be judicious when making decisions to exempt health care providers from the provisions of the FFCRA.

Which employees would be considered an “emergency responder”? (Updated March 29, 2020)
The Families First Act does not define the phrase “emergency responder.” However, on March 28, 2020, the DOL providing the following definition:

[A]n 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.

Although this definition is not currently set forth in the FFCRA, and is not yet included in regulations issued by the DOL, this guidance from the DOL should considered persuasive until such time that regulations are released by the DOL.

What steps would an employer need to take to elect to exclude a “healthcare provider” or “emergency responder” employee from this new law?
Unknown at this time, and the answer may depend on agency guidance.

For the time being, employers may wish to take steps somewhat similar to the ones that they would take under DOL guidance for “key employees,” i.e., salaried, eligible employees who are among the highest paid 10% of all employees at the worksite and for whom unpaid leave and job restoration would cause an employer substantial and grievous economic harm. Thus, like with “key employees,” employers may wish to provide a written notice to the employee at the time the employee gives notice of the need for leave. The notice would advise that the employee qualifies as a healthcare provider or emergency responder, and that the leave could not be allowed during this time.

Again, further guidance from the DOL likely will be needed to confirm the proper steps an employer must take.

For additional information regarding the healthcare industry specifically, and running a business during this pandemic, visit our COVID-19 resource page.

Updated by Jennifer Fowler-Hermes, who may be reached at (941) 552-2558.

John C. Getty
(941) 329-6622

UPDATED: Addressing COVID-19: Employment Law Update and General Guidance for Employers

This post has been updated as of March 19 with the latest information available. Updates are noted in bold red text throughout. 

Given the ongoing concerns about the COVID-19 coronavirus (“COVID-19”) epidemic, employers in all fields want some practical guidance on how to address this situation. Regardless of field, employers should understand that there is a patchwork of intersecting laws that impact decisions they are and will be making as matters develop, touching on disease prevention safety steps, workplace attendance, wage and hour issues, leave rights and obligations, healthcare privacy, discrimination, harassment, and potential short-term layoffs.

We offer this general FAQ for the time being, which is based on the best information available as of today, March 19, 2020. It applies only to U.S. employers, primarily in Florida. Each situation will be fact-specific. As such, this FAQ may not fully address all questions an employer may have. For particular questions, we are happy to assist employers as they navigate through these turbulent times.


The information we provide in this FAQ is as up-to-date as can be when it is posted and we will continue to provide updates as new information becomes available. The answers provided below represent a general overview; and moreover, the understanding of the risks COVID-19 present individuals and businesses is being updated constantly. Below are links to various websites that we understand present the most up-to-date information along with additional details on more specific situations. Employers should consider monitoring these websites as appropriate for their situation.

  1. CDC COVID-19 Website
  2. CDC’s Most Recent Guidelines for 15 Days to Slow the Spread (Issued March 16, 2020)
  3. CDC’s Frequently Asked Questions
  4. CDC’s Interim Guidance for Businesses and Employers
  5. CDC’s Environmental Cleaning and Disinfection Recommendations
  6. CDC’s Travel and Country Risk Assessments
  7. CDC’s Information for Healthcare Professionals
  8. CDC’s Information for Healthcare Facilities (including Long-Term Care Facilities)
  9. Occupational Safety and Health Administration Website on COVID-19
  10. OSHA’s Guidance on Preparing Workplaces for COVID-19
  11. Equal Employment Opportunity Commission Website on COVID-19 [Website updated with new information on December 16, 2020.]
  12. EEOC’s Guidance on Pandemic Preparedness in the Workplace and the Americans with Disabilities Act
  13. Department of Labor Website on COVID-19
  14. DOL’s Guidance on COVID-19 and the Fair Labor Standards Act
  15. DOL’s Guidance on COVID-19 and the Family and Medical Leave Act
  16. DOL’s Fact Sheet #17G: Salary Basis Requirement and Part 541 Exemptions Under the FLSA (Addressing circumstances in which an employer may make deductions from pay)
  17. Florida Department of Health General Website on COVID-19
  18. Florida Department of Health’s Interactive Website on COVID-19 Data and Surveillance
  19. Florida Department of Health’s Collection of Executive Orders addressing COVID-19
  20. Florida Department of Economic Opportunity Press Release on Emergency Bridge Loan Program for Small Businesses Impacted by COVID-19
  21. State of Florida Business Damage Assessment Website
  22. State of Florida Emergency Bridge Loan Program Website

Additionally, employers should carefully pay attention to any new legislation enacted by the federal, state, or local governments, which may affect employee’s rights in the face of COVID-19.

On March 18, 2020, Congress passed the President signed the Families First Coronavirus Response Act, or H.R. 6201. Our team is actively reviewing this new law and will offer guidance in a separate post.


What symptoms does an individual with the COVID-19 coronavirus exhibit?

Generally, according to the Centers for Disease Control and Prevention, individuals with COVID-19 manifest symptoms as a mild to severe respiratory illness with fever, cough, and difficulty breathing, and these symptoms may appear in as few as two days or as long as 14 days after initial exposure.


What’s the main workplace safety guidance employers should be following?

As noted above, OSHA recently published Guidance on Preparing Workplaces for COVID-19, which identifies various steps employers can take to help protect their workforce. OSHA divides workplaces and operations into four risk zones that determine the best work practices and precautions an employer should take:

  1. Very High Exposure Risk:
  • Healthcare employees performing aerosol-generating procedures on known or suspected pandemic patients
  • Healthcare or laboratory personnel collecting or handling specimens from known or suspected pandemic patients
  1. High Exposure Risk:
  • Medical transport of known or suspected pandemic patients in enclosed vehicles
  • Healthcare delivery and support staff exposed to known or suspected pandemic patients
  • Performing autopsies on known or suspected pandemic patients
  1. Medium Exposure Risk:
  • Employees with high-frequency contact with the general population (such as schools, high population density work environments, and some high-volume retail)
  1. Lower Exposure Risk (Caution):
  • Employees who have minimal occupational contact with the general public and other coworkers (such as office employees)

What steps can an employer take now to minimize risk of transmission?

Encourage employees to take the same steps they would be taking to avoid the common cold or seasonal flu: Avoid exposure. According to federal guidance, employers should tell employees:

  • Wash hands often with soap and water for at least 20 seconds, and if not available, use an alcohol-based hand sanitizer;
  • Avoid touching eyes, nose, and mouth with unwashed hands;
  • Avoid close contact with others, especially sick individuals;
  • Refrain from shaking hands;
  • Cover one’s mouth when coughing, preferably with one’s elbow;
  • Sneeze with a tissue, then throw the tissue in the trash;
  • Clean and disinfect frequently touched objects and surfaces—although it’s worth noting that some disinfectant wipes require that the wiped surfaces air dry before they are effectively disinfected; and,
  • Most importantly, stay home when sick.

Additionally, an employer should likely do the following:

  • Monitor local information about COVID-19 in the community;
  • Know the signs and symptoms of COVID-19 and what to do if staff become symptomatic at the worksite;
  • Review, update, or develop workplace plans to include liberal leave and telework policies;
  • Consider 7-day leave policies for people with COVID-19 symptoms;
  • Consider alternate team approaches for work schedules;
  • Encourage staff to telework (when feasible), particularly individuals at increased risk of severe disease;
  • Work with all local employers to ensure all workers have the financial support to stay home with any respiratory symptoms;
  • Encourage personal protective measures among staff (e.g., stay home when sick, handwashing, and respiratory etiquette as noted above);
  • Clean and disinfect frequently touched surfaces daily;
  • Ensure hand hygiene supplies are readily available in building, preferably at entrances to the workplace and work areas;
  • Limit large work-related gatherings (e.g., staff meetings, after-work functions);
  • Cancel non-essential work travel; and,
  • Cancel work-sponsored conferences, tradeshows, etc.

Please note that there is specific advice for healthcare settings and other groups. Such employers should review CDC guidance along with state and local public health officials’ guidance.

May an employer ask an employee to stay home or leave work if they exhibit COVID-19 symptoms? [Answer Updated on March 19, 2020]

Yes, according to the EEOC, employers are permitted to ask an employee to seek medical attention and get tested for COVID-19. Likewise, the EEOC confirms, based on the CDC and state and local public authorities’ declaration states that employees who exhibit symptoms of influenza-like illness at work during a pandemic should leave the workplace.

Still, it pays to avoid panic, and supervisors should understand that they should not overreact when an employee appears for work with potential COVID-19 symptoms—they are simply enacting safety precautions.

More specifically, an employer should focus on the following symptoms:

  • Fever;
  • Chills;
  • Cough (especially a dry cough);
  • Shortness of breath; and/or
  • Sore throat.

Based on the available guidance, the most common COVID-19 symptoms are fever and a dry cough—albeit not all individual’s experiences with COVID-19 are uniform.

Beyond the symptoms, employers should also consider certain risk factors that the CDC has identified based on travel or contact with an individual suffering from COVID-19. The risk assessment is available at this link.

What should we do if an employee tests positive for COVID-19?

CDC guidance suggests that employees should send home all employees who worked closely with that employee for fourteen days to limit the spread of infection. Before the employee departs, ask them to identify all individuals who worked in close proximity (about six feet) with them in the previous two weeks to get a full list of those who likely should be sent home. When sending the employees home, an employer should not identify the infected employee. Identifying the employee potentially violates privacy and confidentiality laws.

Next, the employer also should inform their building management so they can take whatever precautions they deem necessary. The employer should ask their cleaning staff to provide a deep cleaning of the affected work areas.

Do employers have to document any confirmed COVID-19 cases?

According to recent OSHA guidance, a covered employer should record any COVID-19 related illness in its OSHA 300 log if the following criteria are met:

  • An employee has a confirmed case of COVID-19;
  • The employee’s confirmed case of COVID-19 is considered work-related per 29 CFR 1904.5 (i.e. if, outside certain exceptions, an exposure in the work environment caused or contributed to the resulting illness or aggravated a pre-existing injury or illness); and,
  • The case involves one or more of the general recording criteria set forth in 29 CFR 1904.7 (such as death, days away from work, restricted work or transfer to another job, medical treatment beyond first aid, or loss of consciousness).

Should an employer take an employee’s temperature at work to determine whether he or she might be infected? [ANSWER UPDATED ON MARCH 19, 2020]

Yes, according to the EEOC, an employer may take an employee’s body temperature. The Americans with Disabilities Act restricts medical examinations that an employer can make. The EEOC considers taking an employee’s temperature to be a “medical examination.” But, according to new EEOC guidance, “because the CDC and state/local health authorities have acknowledged community spread of COVID-19 and issued attendant precautions, employers may measure employees’ body temperature.”

Please note that there remains separate guidance issued by the CDC for healthcare providers, healthcare facilities, and long-term care facilities, which can be found here and here, on how to handle body temperature checks.

Finally, it remains the case that an infected individual may not necessarily exhibit a fever. That may ultimately make temperature checks ineffective.

Can an employer force an employee to come to work even if they fear catching COVID-19?

Employees are only entitled to refuse to work if they believe they are in imminent danger, which means “any conditions or practices in any place of employment which are such that a danger exists which can reasonably be expected to cause death or serious physical harm immediately or before the imminence of such danger can be eliminated through the enforcement procedures otherwise provided by [law.]”

Importantly, the threat must be immediate or imminent. An employee must believe that death or serious physical harm could occur within a short time. With COVID-19, requiring travel to China or Italy or to work with patients in a medical setting without personal protective equipment may meet this definition. Otherwise, most work conditions likely would not meet the elements required for an employee to refuse to work.

Still, this guidance is general. Employers must determine whether the circumstances have shifted such that a workplace places employees in imminent danger before determining whether they may lawfully require employees to come to work. It may still be best to allow flexibility to maintain employee morale. An employer may consider allowing employees to use any available leave or allow remote work. Further still, employers may wish to allow employees to go into the negative in their sick leave bank as a special allowance to address this situation. Of course, not all employers can make special allowances due to their financial condition, and they should handle it as best as they are able.

May an employer require medical certification before an employee returns to work? [ANSWER UPDATED ON MARCH 19, 2020]
According to the EEOC, employers may ask for a doctor’s note certifying an employee’s fitness for duty when an employee returns to work related to COVID-19. But, the EEOC notes that healthcare professionals will likely be overwhelmed, which will significantly delay such a discharge. The CDC has encouraged employers not to require “a healthcare provider’s note for employees who are sick with acute respiratory illness to validate their illness or to return to work.” Instead of a certification, the EEOC suggests that “new approaches may be necessary, such as reliance on local clinics to provide a form, a stamp, or an e-mail to certify that an individual does not have the pandemic virus.”

If an employer is hiring, may it screen applicants for symptoms of COVID-19? [NEW QUESTION AND ANSWER ON MARCH 19, 2020]
According to the EEOC, yes, an employer may screen job applicants for symptoms of COVID-19 after making a conditional job offer—as long as it does so for all entering employees in the same type of job.

May an employer take an applicant’s temperature as part of a post-offer, pre-employment medical exam? [NEW QUESTION AND ANSWER ON MARCH 19, 2020]
According to the EEOC, yes, any medical exams are permitted after an employer has made a conditional offer of employment. But, again, it is worth noting that there is some indication that not all infected individuals exhibit a fever.

May an employer delay the start date of an applicant who has COVID-19 or symptoms associated with it? [NEW QUESTION AND ANSWER ON MARCH 19, 2020]
According to current CDC and EEOC guidance, yes, an individual who has COVID-19 or symptoms associated with it should not be in the workplace.

May an employer withdraw a job offer when it needs the applicant to start immediately but the individual has COVID-19 or symptoms of it? [NEW QUESTION AND ANSWER ON MARCH 19, 2020]
Noting current CDC guidance, the EEOC advises employers that this individual cannot safely enter the workplace. And as such, an employer may withdraw a job offer from such an individual.

Can an employer force an employee to cease discussing whether the worksite is unsafe because of potential COVID-19 exposure?

Likely no. The National Labor Relations Act protects non-supervisory employees—union and non-union alike—to engage in “protected concerted activity for mutual aid or protection.” Such activities include circumstances in which two or more employees act together about working conditions, participating together to refuse to work in unsafe conditions, and/or joining with co-workers to talk to the media about problems in the workplace. Employees are generally protected against discipline or discharge for engaging in protected activities.


May an employer impose consequences, including unpaid leave, for an employee who engages in activities contrary to CDC recommendations such as going on a cruise or traveling outside of the US?

It depends. Employers in the healthcare or long-term care industries should consult the requirements specific to their industries.

All other employers may take action to protect their workplaces and customers from employees who engage in conduct that is determined to increase the risk of spreading COVID-19, and particularly if the conduct is contrary to CDC recommendations. If an employee has traveled to a Level 3 country, the employee can be required to remain at home. However, this is a fact-specific and quickly changing area. If the conduct does not involve a clear CDC recommendation, and the employer intends to prohibit the travel or suspend the employee without pay, the employer should consult counsel as to the specifics. The reasonableness of the employee’s activities and the employer’s response will depend on the level of risk or recommendation by the CDC at the time of travel and desired return to work and the nature of the work. Regardless, the employer should take caution to not regard such an employee as having a disability or illness because of the conduct, should protect the employee’s confidentiality of health information, and should ensure that the employer’s reaction is not and does not appear to be related to an employee’s protected characteristics, such as national origin, age, or pregnancy.


Are employers required to pay employees who are not working?

The Fair Labor Standards Act (FLSA) address minimum-wage and overtime. Generally, the FLSA does not require an employer pay employees who are not working. But, an employer may have a legal obligation to keep paying employees because of an employment agreement, a collective bargaining agreement, or some other state law.

Employers should consider salary issues with exempt employees. If an exempt employee performs at least some work during the workweek, the FLSA regulations will require that the employer pay the employee his or her entire salary for that workweek. There can be exceptions—for instance, according to DOL guidance, an employer does not have to pay an exempt employee who decides to stay home and performs no work even when the office is open.

Of course, employers may wish to consider the public relations aspect of not paying employees in this situation. Given adverse media related to COVID-19, an employer’s reputation could be damaged.

May an employer apply vacation or PTO leave to COVID-19-related absences?

Presuming no agreement or state law prevents it (which Florida law does not), yes, an employer may allow an employee to apply leave for COVID-19 related absences. Note, however, that the salary requirements for exempt employees may affect the use of leave under various circumstances.

When allowing remote work, what guidance should employers provide non-exempt employees?

In situations where remote work becomes required, employers should make sure they remind non-exempt employees about the following key points:

  • The non-exempt employee’s time records should accurately reflect all time actually worked.
  • Overtime is prohibited unless the employee’s supervisor approved the overtime beforehand.
  • Working unauthorized overtime constitutes misconduct and subjects the employee to discipline.
  • The option for remote work is temporary under the circumstances; the employer may end any remote work situation at any time and for any reason.


Does the Family and Medical Leave Act apply to COVID-19?

The FMLA may protect employees requesting leave if they are eligible. No law, however, prevents an employer from voluntarily extending an employee’s leave without any legal obligation to do so.

Still, employees are not entitled to FMLA leave to stay home to avoid catching COVID-19. We suggest that an employer may wish to consider leave requests depending on these circumstances. If there are questions, speak with legal counsel to try to avoid potential litigation.

Are there any ADA-compliant questions employers can ask their employees to determine their respective ability to work during a pandemic?

Yes, according to the EEOC, an employer can ask that employees complete the following survey to determine potential non-medical reasons for absences during a pandemic (e.g. curtailed public transportation or school or childcare closures):


Directions: Answer “yes” to the whole question without specifying the factor that applies to you. Simply check “yes” or “no” at the bottom of the page.

In the event of a pandemic, would you be unable to come to work because of any one of the following reasons:

  • If schools or day-care centers were closed, you would need to care for a child;
  • If other services were unavailable, you would need to care for other dependents;
  • If public transport were sporadic or unavailable, you would be unable to travel to work; and/or;
  • If you or a member of your household fall into one of the categories identified by the CDC as being at high risk for serious complications from the pandemic influenza virus, you would be advised by public health authorities not to come to work (e.g., pregnant women; persons with compromised immune systems due to cancer, HIV, history of organ transplant or other medical conditions; persons less than 65 years of age with underlying chronic conditions; or persons over 65).

Answer: YES______ , NO_______

There may, depending upon an employer’s situation, be additional ADA-compliant questions. Any other questions should be reviewed with counsel.

During a pandemic, may an ADA-covered employer ask employees who do not have symptoms to disclose whether they have a medical condition that the CDC says could make them especially vulnerable to complications?

Generally, no. However, if the pandemic becomes severe or serious according to local, state, or federal health officials, ADA-covered employers may have sufficient objective information to reasonably conclude that employees will face a direct threat if they contract COVID-19. Only then may ADA-covered employers make disability-related inquiries or require medical examinations of asymptomatic employees to determine which employees are at a higher risk of complications.


How does COVID-19 affect HIPAA privacy rules?

They are not affected. HIPAA rules remain in effect even with a pandemic.

How should employers treat medical information?

Generally, employers should treat all medical information as confidential and afford it the same protections as those granted by HIPAA in connection with their group health plan.

Yet, an employer may share the protected information with providers or government officials as necessary to locate, identify, or notify family members, guardians, or anyone else responsible for an individual’s care, of the individual’s location, general condition, or death. Before doing so, attempt to get the individual’s written or verbal permission to disclose this information. When unable to do so, the protected information can be shared if doing so would be in the individual’s best interests. In addition, an employer can disclose this protected information to authorized personnel without permission if disclosure is necessary to prevent or lessen a serious and imminent threat to the health and safety of a person or the public.

What obligations do employers have under the HIPAA privacy rules if contacted by health officials about one of our employees?

An employer should only disclose information to authorized personnel, and only after they have properly been identified.


If an employee contracts COVID-19 at the workplace, does the employee have a workers’ compensation claim?

It depends. When the employee is a healthcare worker or a first responder, then an employee who contracts COVID-19 likely has a workers’ compensation claim—albeit subject to specific state law on the subject.

For other types of employees, the answer is not clear-cut and depends on the situation. Generally, an employee must show they suffered a work-related injury or “occupational disease,” and that the injury or disease was proximately caused by their employment to establish a workers’ compensation claim.

In this instance (again subject to state law), COVID-19 likely will not be considered an injury. Rather, it likely will be analyzed under the “occupational disease” framework. Under that framework, an employee usually has to show that (1) the disease arose out of and was in the course of employment; and (2) the disease arose out of or was caused by conditions peculiar to the work, creating a greater degree of risk for contracting the disease compared to the general public. This determination will likely be made on a case-by-case basis, and it is difficult to tell in advance whether non-healthcare workers or first responder employees will be able to establish such an “occupational disease.”


Does an employer have any discrimination or harassment issues related to COVID-19?

As in any other situation, an employer cannot apply disparate treatment to employees based on their nation of origin. Employers should watch to make sure no employees are being subjected to disparate treatment or harassed in the workplace because of their national origin. However, note that if an employee, regardless of their race or national origin, was recently in China, Iran, or Italy and shows COVID-19 symptoms, employers may have a legitimate reason to bar that employee from the workplace.


If an employer is forced to suspend operations because of COVID-19 and the aftermath, does the employer have any legal obligations due to the suspension?

Potentially, yes. If an employer is covered by the Worker Adjustment and Retraining Notification (WARN) Act, which applies to employers with 100 or more full-time employees, they may have to provide certain notices to affect employees if there has been a “plant closing” or “mass layoff,” regardless of reason. Please note that these quoted terms are special, nuanced words with specific meanings defined by federal regulations. They do not cover every single layoff or plant closure.

What are a “plant closing” and a “mass layoff”?

A “plant closing” is defined as the permanent or temporary shutdown of a site that results in an employment loss for 50 or more employees during any 30-day period. A site can include one or more facilities or operating units at single location. On the other hand, a “mass layoff” is a reduction-in-force other than a plant closing that results in an employment loss at a single site for 500 or more employees, or at least 50 or more employees and at least 33% of the employer’s active workforce.

Also, for purposes of WARN, a layoff must last at least six months. Of course, in situations like this, it is hard to know how long a layoff may occur.

What type of notice must employers provide under WARN?

Under WARN, employers must provide at least 60 calendar days of notice before a covered plant closure or mass layoff. Also, under WARN, employers must provide notice to unions and certain local government entities along with certain specified information.

Still, WARN has a specific exception when layoffs occur due to unforeseeable business circumstances. It is possible this provision could apply to COVID-19—albeit there is no certainty and this exception is repeatedly litigated.

Even then, an employer still must provide “as much notice as is practicable, and at that time shall give a brief statement of the basis for reducing the notification period.” Stated differently, after an employer evaluates the immediate impact of COVID-19 upon its business and workforce, it likely must then provide specific notice to affected employees. The notice must explain why the employer could not provide notice for the statutorily-required period. In this instance, the explanation would be because of how COVID-19 was not foreseeable.

Keep in mind that some states have “mini-WARN” laws that may apply, but Florida is not one of them.

Will the DOL enforce WARN given the seemingly-unprecedented outbreak?

Unknown at this time. But employees and lawyers representing them may still bring a suit even if the DOL does not.

Consequently, it is recommended that employers carefully evaluate their current situations to determine if there has been or will be a triggering event under WARN. If so, employers should consider providing as much notice to affected employees as possible given the circumstances.

We will continue to provide additional updates as new information becomes available.

John C. Getty
(941) 329-6622

Monster of a Florida Non-Compete Statute Survives Challenge

Earlier this year, the Florida Legislature enacted a statute that some claim is too similar to a Halloween movie monster. Much like all good movie monsters, this statute, Section 542.336 of the Florida Statutes, was created with the best of intentions. According to the legislative history, the statute was designed to combat the effects of the increasing concentration and consolidation of physician services, which reduced patients’ access to physicians and increased costs. To accomplish these goals, the statute alters existing Florida law on restrictive covenants, colloquially referred to as non-competes, which are usually enforced as long as they were reasonable in geographic scope and duration as well as supported by legitimate business interests.

Section 542.336, though, nullifies certain types of non-competes. It specifically nullifies non-competes that prohibit physicians with a specialty from competing in the same county with their former employers if that healthcare entity employs or contracts every other physician with that specialty in that county. Such non-competes are nullified until three years after another healthcare entity has begun offering the same medical specialty services in the county.

But, like any movie monster released into the wild, the statute has some troubling aspects. As an initial matter, it is wholly unclear whether the statute applies only to agreements entered into after its effective date or whether it also applies to all pre-existing contracts. It is also unclear what types of practices would be considered a medical specialty subject to the statute. Additionally, it is unclear the date that starts the three-year period, after which the non-competes subject to the statute can be enforced.More concerning is how Section 542.336 affects medical practices in the more rural counties in Florida or in which there are few, if any other, physician practitioners.

These troubling aspects have already been felt by at least one practice, 21st Century Oncology, Inc., which employed all of the radiation oncologists practicing in Lee County, Florida. Earlier this year, 21st Century Oncology sued the State of Florida, moving for a preliminary injunction on the statute, arguing that the law was unconstitutional. In 21st Century Oncology, Inc. v. Moody, the court acknowledged the plaintiff’s comparison of the new statute to the monster from the “fetid depths of a jungle swamp” in the film Creature from the Black Lagoon; however, the court was not persuaded that the statute is as unconstitutional as 21st Century claimed. According to the court, Section 542.336 serves a significant, legitimate public purpose, which does not render the employment contracts between practices and physicians wholly valueless. It, therefore, was not found unconstitutional under current federal case law. Hence, the statute survived 21st Century’s constitutional challenge.

Given the that this new statute survived its first challenge, healthcare practices should review their existing non-competes to determine what, if any, impact Section 542.336 will have on them. Additionally, individuals or entities looking to invest in new practices should be mindful of the new statute when considering the acquisition. Such investors may want to consider other means to entice practitioners to stay on, such as deferred compensation plans.

John C. Getty
(941) 329-6622

Avoiding Errors in the Match Game: Responding to the Rising Number of “No-Match” Letters

Starting late last year and continuing on the heels of tax season, the Social Security Administration (SSA) has been sending employers Employer Correction Request Notices, also known as EDCOR notices or “no-match” letters. An example “no-match” letter is available at the SSA’s website. These “no-match” letters notify an employer that the information submitted on an employee’s W-2, such as the Social Security Number or SSN, does not match the SSA’s records. Even though it’s not conclusive evidence that an employee is not authorized to work in the United States, it can put an employer on notice of a possible issue, which can lead to potential compliance issues and liability under federal law. See our previous discussion here and here on recent Form I-9 compliance issues.

Of course, common discrepancies can also trigger a “no-match” letter, such as  unreported name changes, typos or input errors by the SSA, reporting errors by an employer or employee, errors in recognizing multiple last names or hyphenated last names, or identity theft.

In other words, “no-match” letters can arise because of simple administrative errors. Employers should not presume the “no-match” letter conveys information about an employee’s immigration status or authorization to work within the United States. Still, the “no-match” letters may also indicate that an individual provided false identification.

Employers must be cautious when dealing with a “no-match” letter. An overreaction—such as requesting excessive or unnecessary documentation from employees—can violate the anti-discrimination provisions in federal law, which generally prohibit discriminatory employment practices because an employee’s national origin, citizenship, or immigration status. Thus, an employer should not attempt to do any of the following after receiving a “no-match” letter:

  • Take any adverse employment action against an employee subject to a “no-match” letter, including—but not limited to—firing, demoting, cutting hours, reducing the wages of, or writing up such an employee;
  • Follow different procedures for different classes of employees based on the employees’ respective national origin or citizenship status;
  • Require the employee immediately provide a written report that the SSA verified the requisite information (primarily because the SSA may not ever provide such a report);
  • Immediately reverify the employee’s eligibility to work by requesting a new Form I-9 based solely on the “no-match” letter; or
  • Require an employee produce any specific I-9 documents, such as a Social Security card, to address the no-match issue.

The question then becomes: How should employer respond to a “no-match” letter?

Unfortunately, the letters usually do not identify the employees for whom the SSA finds there is a “no-match” issue. To determine which employees’ information is at issue, an employer must first register with the SSA’s Business Service Online website. Through that website, an employer can then compare the employee names and SSN information in its files against the SSA’s records to make sure the information was correctly submitted, and no typographical error occurred. If an employer determines it misreported the information, it can issue a correction through an updated IRS Form W-2C. An employer generally has 60 days from receipt of the “no-match” letter to issue a Form W-2C to make corrections if that is the cause of the “no-match.”

Should an employer determine that it properly reported the information, then the employer will need to further investigate and may want to seek guidance from counsel before taking further action.

John C. Getty
(941) 329-6622

Once More, With Feeling: Proposed Increase to Minimum Salary for Highly Compensated Employees

As previously reported, the U.S. Department of Labor issued a proposed rule addressing exemptions for bona fide executive, administrative, professional, and outside sales employees (the “white-collar” exemptions”) under the Fair Labor Standards Act. Presuming the rule goes into effect, the new minimum salary threshold for these employees will be $35,308 per year (or $679 per week).

Beyond changing the minimum salary threshold for the “white-collar” exempt employees, the DOL also proposed increasing the exemption threshold for a smaller category of employees: “highly-compensated” employees. Previously, any employee whose primary duty was performing office or non-manual work and who customarily and regularly performed at least one duty or had at least responsibility of a bona fide executive, administrative, or professional employee could be exempt–if the employee made at least $100,000 a year and received at least $455 each week on a salary or fee basis. In essence, the “highly-compensated” employees exemption combines a high compensation requirement with a less-stringent, more-flexible duties test in comparison to those used under the “white-collar” exemptions.

Like the DOL’s proposed changes to the “white-collar” exemption, the DOL’s proposed changes to the “highly-compensated” exemption does not alter the duties requirements. Rather, the DOL proposes an increase to the annual and weekly salary thresholds. But in this instance, the increase is substantial. The proposed new threshold jumps from $100,000 under the current rules up to $147,414, of which $679 must be paid weekly on a salary or fee basis. That is an approximate 50 percent increase, and it is about $13,000 higher than what had been previously proposed when changes were considered in 2016.

Now, despite the change raising eyebrows, one could question whether it would have significant impacts because most workers paid $100,000 or more often already fall into one or more of the other exemptions. The DOL itself acknowledges in the proposed rulemaking that it estimates only about 201,100 workers nationwide would become eligible for overtime due to this salary increase. In comparison, the DOL expects the “white-collar” salary change will impact approximately 1.1 million workers nationwide.

The common view remains that the new minimum salary thresholds will likely go into place later this year (2019) but likely no later than January 1, 2020. Although that later date is almost seven months away, that deadline is rapidly approaching. Hence, it is worth reiterating that employers should begin evaluating their staff to determine who, if anyone, may be affected and determine how to proceed. Similarly, this rule change provides employers an opportunity to audit all of their employees (even those unaffected by the proposed rule changes) to make sure each one is properly classified. And if they are not, employers can time any reclassifications with those made to meet the new rule changes to possibly minimize bringing attention to and potential liability for any past misclassifications.

In the meantime, the DOL will accept comments from interested parties until May 21, 2019 at 11:59 PM ET. The public will be able to provide electronic comments at (after searching for RIN no. 1235-AA20) or via mail to the address below (identifying in the written comment (1) the Wage and Hour Division, United States Department of Labor; and (2) RIN no. 1235-AA20).

Division of Regulations, Legislation, and Interpretation
Wage and Hour Division
U.S. Department of Labor, Room S-3502
200 Constitution Avenue, N.W.
Washington, D.C. 20210

John C. Getty
(941) 329-6622

No Fooling: DOL Proposes New Rule to Determine Joint-Employer Status

As a rule of thumb, skepticism is in order for any news blasted out on April Fool’s Day. For that reason, you could easily believe that the U.S. Department of Labor (DOL) was joining in the tomfoolery this year when it issued a new Notice of Proposed Rulemaking on April 1, 2019 to address joint employment under the Fair Labor Standards Act (FLSA), but, that wasn’t the case.

Through its April 1, 2019 notice, the DOL seeks to revise regulations on joint employment issues. A joint employer is any additional individual or entity who is equally liable with the employer for the employee’s wages, including minimum wages and overtime. Presently, the regulations state that multiple persons or companies can be joint employers if they are “not completely disassociated” with respect to the employment of an employee. The phrase “not completely disassociated” is not clearly explained in the regulations, which has led to thorny issues when dealing with the employees of subcontractors, franchisees, and similar relationships.

To address such issues, the DOL proposes a four-factor analysis that considers whether the employer actually exercises the power to:

  • Hire and fire an employee;
  • supervise and control an employee’s work schedules or conditions of employment;
  • determine the employee’s rate and method of payment; and
  • maintain the employee’s employment records.

The DOL indicates that there are other factors that should and should not be considered. It also clarifies certain business models and practices or contractual language that does not make a joint employer status more or less likely. A Fact Sheet issued with this proposed rule does a fair job of summarizing the other factors. For example, the DOL indicates that just because a company reserves the right in a contract to exercise control over another company’s workers does not—by itself—make a company more or less likely to be considered a joint employer. Rather, a company must actually exercise the contractual control to become a joint employer. Likewise, the DOL notes that just because a company can require another contracting party to institute anti-harassment policies, workplace safety measures, or wage floors does not make it more or less likely the two companies are joint employers.

The April 1, 2019 notice began the notice-and-comment process. The DOL will accept comments from interested parties for 60 days. The public will be able to provide electronic comments at (after searching for RIN no. 1235-AA26) or via mail addressed to:

Division of Regulations, Legislation, and Interpretation
Wage and Hour Division
U.S. Department of Labor, Room S-3502
200 Constitution Avenue, N.W.
Washington, D.C. 20210

(identifying in the written comment (1) the Wage and Hour Division, United States Department of Labor; and (2) RIN no. 1235-AA26).

John Getty
(941) 329-6622

Let’s Try this Again: Department of Labor Proposes Salary Increases for White-Collar Exemptions

Please note: This post has been updated to reflect a corrected annual minimum salary threshold of $35,308 which represents a nearly $12,000 per year increase from the current salary requirement of $23,660.

The U.S. Department of Labor issued a much-anticipated proposed rule addressing the “white-collar” exemptions for the Fair Labor Standards Act. If the proposed rule is enacted later this year, the new minimum salary threshold will be $35,308 per year (or $679 per week). This represents nearly a $12,000 per year increase from the current salary requirement of $23,660 (or $455 per week). Thus, once this new rule goes into effect, for an employee to be exempt from the FLSA’s minimum wage and overtime rules, the employee’s salary will need to meet the new threshold.

Importantly though, the DOL will not be altering any other aspects of the “white-collar” exemption tests. It won’t be changing the various tests for executives, administrative staff, or professionals. Nor does the DOL’s new rule include periodic automatic increases to the minimum salary threshold as the Obama-era DOL had proposed before a district court stopped it in 2016.

Depending on how quickly the DOL moves through the rule-making process and issues the new rule, the new minimum salary threshold will likely go into place late summer or early fall of this year. For that reason, as they did in 2016 in response to the prior proposed increases, employers will want to begin evaluating their staff to determine who may be affected and determine how they want to proceed.  Additionally, because of this rule change, employers will also want to audit all of their employees to make sure each one is properly classified, and if not, take this opportunity to reclassify employees in a manner that tries to minimize liability for any past misclassifications.

John Getty
(941) 329-6622

A Clue to the NLRB’s Future Focus?

In regulatory action last week, the current board of the National Labor Relations Board not-so-subtly identified several areas where the Board wants to reverse course. Specifically, on October 16, 2018, the Board’s General Counsel released four advice memorandums issued during the Obama administration addressing several topics, including dress codes, replacement of striking employees, and video recordings of workplace strikes.

It is uncommon for advice memos to be released, especially those from prior administrations.  Most times, such releases happen after a matter has been resolved or the General Counsel has directed a region to dismiss a case. When memos are released, it is because the Board wants to draw attention to a trending topic or point of emphasis. In this instance, the Board released advice memos that were quite favorable to labor unions and workers:

  • In two advice memos involving Walmart dating to 2013, the Board’s General Counsel at that time recommended that the regional director bring unfair labor practices when the retailer (1) told a plainclothes security guard that he could not wear union clothing while undercover; and (2) prohibited workers from wearing union insignia shirts and then disciplined them for engaging in a work stoppage (which the General Counsel opined was not an unprotected sit-in strike);
  • In a different 2013 memo, the General Counsel found that Boeing acted unlawfully when it recorded union solidarity marches that happened on its property while it also had a rule in its employee handbook that blocked employees from using cameras on its property; and
  • In another advice memo issued in early 2017, the then-General Counsel concluded a California fishery committed an unfair labor practice when it unlawfully replaced striking employees by giving temporary employees permanent positions.

These memos are noteworthy since the current General Counsel, Peter Robb, and the Board at large are unlikely to support the positions espoused in the Obama era memos. For instance, in December 2017, the Board has changed course in the Boeing matter, concluding that the Board’s previous edicts on handbooks gave too much credence to employees’ rights and too little to employers’ interests.

Considering the reversal in Boeing matter, the fact that the General Counsel released the other advice memos on the same day potentially signals those advice memos do not reflect the Trump-era General Counsel or Board’s position. For that reason, employers may wish to challenge similar unfair labor practice findings in other settings.

Still, although these advice memos may be a relic of the Obama-era Board, another administration’s Board could renew the legal theories and positions contained in the advice memos. Thus, at the very least, employers should remain mindful of the views taken in the advice memos and consider potential protective steps.

John Getty*
(941) 329-6622
*Admitted in Louisiana and Georgia