Tag Archives: Employers

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

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

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

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

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

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

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

Register at lwrba.org/events

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

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

Florida Raises Minimum Wage

Effective January 1, 2021, Florida’s minimum wage rate will increase from $8.56 per hour to $8.65 per hour. Florida’s minimum wage law applies to all employees in the state of Florida who are covered by the federal minimum wage law. For “tipped employees” who meet eligibility requirements for the tip credit under the federal Fair Labor Standards Act (FLSA), employers may take a “tip credit” of up to $3.02 per hour for tips received by the employee. However, they must still pay employees a direct wage. The direct hourly wage for tipped employees in Florida for 2021 is $5.63 (the 2021 Florida minimum wage rate ($8.65) minus the federal tip credit ($3.02)). Both Florida’s minimum wage rate and the direct hourly wage rate for tipped employees are higher than the federal rates, so Florida employers must pay employees the higher Florida rates.

In addition, in November 2020, Florida voters passed Amendment 2 by a constitutional referendum. Effective September 30, 2021, Florida’s minimum wage will rise from $8.65 to $10 an hour and increase $1 every year until it reaches $15 per hour on September 30, 2026. Starting September 30, 2027, Florida’s minimum wage rate will be adjusted annually for inflation.

If employers have not already done so, they should make appropriate pay adjustments for their minimum wage earners. Employers who must pay their employees the Florida minimum wage must post a notice of the state minimum wage requirement (besides posting a notice as required by the FLSA) in a conspicuous and accessible location. The Florida notice is available online.

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

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

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

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

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

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

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

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

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

Definition of Health Care

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

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

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

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

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

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

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

Work Availability Requirement

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

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

Definition of “Intermittent Leave

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

Documentation and Notice Requirements

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

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

Concluding Thoughts

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

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

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

Treasury Releases Guidance Implementing Executive Action on Employment Tax Deferral

On Friday, August 28, the Treasury Department (“Treasury”) released guidance implementing President Trump’s executive directive to defer the employee portion of social security tax. As part of the continued response to the COVID-19 pandemic, Notice 2020-65 allows employers to make this deferral during the period of September 1, 2020 through December 31, 2020 for employees earning below a threshold amount of $4,000 during a bi-weekly pay period. This threshold is to be determined on a per-pay period basis rather than as an annualized amount. While not clearly stated in the Notice, both Treasury and the Internal Revenue Service (“IRS”) have framed the deferral as optional for employers.

For those employers who do choose to defer the employee share of social security tax, these amounts will be postponed until the period beginning on January 1, 2021 and ending on April 30, 2021. This could mean that absent further legislation affording permanent forgiveness of these amounts, employees would be obligated to make increased payroll payments for that four-month period. If employers fail to withhold and deposit any deferred amounts by May 1, 2021, the Notice states that they will be on the hook for penalties and interest—again, assuming Congress fails to enact legislation that says otherwise.

What remains unclear is whether employees may choose to opt out of an employer’s choice to defer and how employers should treat the deferred taxes of employees who are terminated before these amounts are fully repaid in 2021. The Notice does, however, state that “[i]f necessary, the [employer] may make arrangements to otherwise collect the total Applicable Taxes from the employee,” suggesting that an employer could, for example, deduct any deferred tax owing from an employee’s final paycheck to the extent permitted by the Fair Labor Standards Act.

The IRS has released a draft update of Form 941, Employer’s Quarterly Federal Tax Return, on which employers may take into account employee social security withholding that is deferred. The key change appears to be on page 3, line 24, which asks for the “Deferred amount of the employee share of social security tax included in line 13b.”

We hope to see more concrete guidance from Treasury in the coming weeks.

Join Us for a Webinar: Employment Law and Tax Developments Businesses Might Have Missed While Focused on COVID-19

Over the last several months there have been developments in employment law and tax not directly related to COVID-19 that you may have missed. While businesses have been focused on responding to COVID-19—learning about the Families First Coronavirus Relief Act, the PPP, and developments with unemployment—the Supreme Court and government agencies have been making decisions that impact the workplace.

We invite you to join us for a complimentary, one-hour Zoom webinar to discuss some of these decisions and how they may impact the workplace.


  • Expansion of Title VII protection of sex to include sexual orientation and gender identity
  • Expansion of rights of religious employers
  • Changes to certain provisions of the Fair Labor Standards Act
  • Updates from the National Labor Relations Board on workplace investigations and work email
  • Amendment to the Florida Civil Rights Act
  • Tax planning for 2020
  • Tax provisions supporting businesses

Wednesday, August 12
10:00 – 11:00 a.m. 



Jennifer Fowler-Hermes
Board Certified Labor & Employment Attorney | Williams Parker

Gail E. Farb
Labor & Employment Attorney | Williams Parker

Beth C. Ebersole
CPA, ABV | Kerkering, Barberio & Co.

Thomas B. Luzier
Board Certified Real Estate Attorney | Williams Parker

Amounts Paid to Employees for Sick and Family Leave Wages Are to be Reported on W-2s

Yesterday, July 8, 2020, the Internal Revenue Service (“IRS”) issued Notice 2020-54, which provides guidance to employers on reporting qualified sick and family leave wages paid to employees under the Families First Coronavirus Response Act (FFCRA). Enacted this past March 2020, the FFCRA generally requires employers with fewer than 500 employees to provide paid leave due to certain circumstances related to COVID-19.  Notice 2020-54 directs employers to “separately state” each of the paid sick and family leave wage amounts either in Box 14 of Form W-2 or in a statement that accompanies the Form W-2.

The guidance provides employers with adaptable model language for use in the Form W-2 instructions for employees. An excerpt of that language is as follows:

“Included in Box 14, if applicable, are amounts paid to you as qualified sick leave wages or qualified family leave wages under the Families First Coronavirus Response Act. Specifically, up to three types of paid qualified sick leave wages or qualified family leave wages are reported in Box 14:

  • Sick leave wages subject to the $511 per day limit because of care you required;
  • Sick leave wages subject to the $200 per day limit because of care you provided to another; and
  • Emergency family leave wages.”

The Notice goes on to state that the wage amount required to be reported by employers on Form W-2 will provide self-employed individuals who are also employees with the information necessary to determine the amount of any sick and family leave equivalent credits they may claim in their self-employed capacities. We recommend that employers review the Notice’s model language for their Form W-2 instructions.

Watch On-Demand: Webinar on Novel Issues Relating to Employees Working Remotely

As more employees work from home, employers are facing questions about how to comply with employment laws in a manner that minimizes risks associated with remote work. Our Business Solutions team recently presented a webinar addressing many of the employment-related issues arising from remote work. The head of our Labor & Employment practice, Jennifer Fowler-Hermes and L&E attorney John Getty were joined by Brad Hall, a workers’ compensation defense attorney, to discuss a variety of topics, including how to properly track work hours, complying with employment laws, the importance of telework agreements, and whether and to what extent workers’ compensation laws apply. Watch it on-demand below.


DOL Answers More Questions About Paid Sick Leave and Expanded Family and Medical Leave Under the FFCRA

On April 6, 2020, the U.S. Department of Labor’s (DOL) Wage and Hour Division (WHD) issued yet another series of questions and answers to provide additional guidance regarding the protections and relief offered by the new Families First Coronavirus Response Act (FFCRA). The DOL also reorganized its FFCRA questions page by categories (definitions, eligibility, coverage, application, and enforcement), in addition to its questions and answers by number.

As noted in our recent blog post, the FFCRA provides expanded paid and unpaid family and medical leave broader than the Family and Medical Leave Act of 1993 (FMLA) and paid sick leave to certain employees affected by COVID-19. In addition, it provides help for individuals and businesses impacted by the pandemic—like reimbursement through a refundable tax credit available to private employers. The FFCRA became effective April 1, 2020, and will expire at the end of the year. It is enforced by the WHD. Continue reading

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.