Tag Archives: Sarasota

The American Rescue Plan Act and How It Affects Employers

Employment-related highlights of the recently enacted American Rescue Plan Act of 2021 (ARPA) include extended federal paid leave, COBRA premium subsidies, and expanded unemployment benefits. Below is a detailed summary highlighting these provisions.

Extended Paid Leave

The ARPA further extends paid leave that was initially created by the Families First Coronavirus Response Act (FFCRA) on April 1, 2020. As noted in our earlier blog post, the FFCRA provided 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. FFCRA mandatory leave provisions expired on December 31, 2020, but were extended as voluntary options through March 31, 2021. The ARPA further expands and extends FFCRA paid leave from April 1, 2021 through September 30, 2021 (Extended Period), as follows:

  • Employers with fewer than 500 employees may choose to provide the paid leave – it is not mandatory for any employers.
  • If employers choose to provide paid sick leave (EPSL) or paid FMLA (EFML) under the ARPA, they may be entitled to tax credits for leave in the Extended Period.
  • Employees get a new entitlement of up to 80 hours or 10 days of EPSL to use in the Extended Period – regardless of whether they’d used any or all of their earlier EPSL allotment as of April 1, 2021.
  • Eligibility reasons for EPSL include the FFCRA’s initial reasons but are expanded to include: (a) obtaining COVID-19 vaccines; (b) recovering from an injury, disability, illness, or condition related to COVID-19 vaccination; and (c) seeking or awaiting the results of a COVID-19 test or diagnosis because either the employee has been exposed to COVID or the employer requested the test or diagnosis.
  • EFML tax credits are increased to $12,000 per employee’s paid family leave wages (instead of $200/day and $10,000 total/employee).
  • For up to 10 days’ EPSL, employees should be paid amounts equal to 100% of pay (max $511 per day) or 2/3 of pay (max $200 per day) depending on their reason for leave. As of Day 11 (when EFML begins), employees receive 2/3 of their pay up to $200 per day.
  • Unlike earlier, certain state and local government employers and 501(c) federal government entities will be tax-credit eligible.
  • Employers are prohibited from discriminating in favor of highly compensated employees, full-time employees, or employees on the basis of employment tenure, e.g., cannot offer different levels of EPSL or EFML leave on those grounds.
  • If employers choose to take tax credits for ARPA-provided leave, they should generally comply with FFCRA paid leave mandates, regulations, and other guidance as if it were 2020 when providing the leave.

Questions remain regarding provision of any new allotment of EFML, application toward regular FMLA allotments, and whether employers can choose to provide less than all of the types or amounts of non-mandatory EPSL and EFML. We look forward to receiving guidance from the U.S. Department of Labor (DOL).

COBRA Premium Subsidies

As noted in our recent blog post, the ARPA subsidizes certain COBRA premiums. COBRA allows employees and their families who would otherwise lose their group health coverage due to certain life events to continue their group health coverage, known as COBRA continuation coverage. The ARPA provides a 100% premium subsidy for individuals whose reduction in hours or involuntary termination of employment makes them eligible for COBRA continuation coverage during the Extended Period (including mini-COBRA).

Within 60 days after April 1, 2021, employers’ plan administrators must provide certain notice to “assistance eligible individuals,” which includes certain former employees who separated throughout the pandemic. Fortunately, on April 7, 2021, the DOL issued guidance with model notices and forms to assist in this regard. Employers and their plans will be reimbursed by a new tax credit applied against employers’ shares of Medicare hospital insurance tax. Businesses should consult with their tax and benefits specialists for further details and guidance.

Unemployment Benefits

The ARPA extended expanded unemployment benefits with $300 weekly supplements through Labor Day (September 6, 2021) beyond the March 31, 2021 prior expiration date.

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

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.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Definition of Health Care

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

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

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

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

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

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

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

Work Availability Requirement

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

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

Definition of “Intermittent Leave

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

Documentation and Notice Requirements

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

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

Concluding Thoughts

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

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

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

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.

TOPICS INCLUDE:

  • 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. 

REGISTER NOW >

PRESENTED BY:

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.

Moderator:
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.