The leftover turkey is gone, holiday decorations are going up, and the year that seemed like it would never end is finally winding down. Like so many other things in 2020, employers are being forced to forgo their annual holiday parties for the health and safety of their employees. But fear not! There is still fun to be had. As New Year’s Eve approaches without the promise (or threat) of alcohol-induced party shenanigans, we offer five cocktail-themed legal issues for employers to keep in mind as they ring in the New Year.

Eggnog with FFCRA sprinkles: Few drinks evoke the holiday season better than eggnog. Like eggnog, the Families First Coronavirus Response Act (FFCRA) was tasty in December but will leave a bad taste in your mouth on Jan. 1, 2021. That is because the emergency paid sick leave and expanded family and medical leave benefits provided by the FFCRA, which provided eligible employees to up to two weeks of paid sick leave and up to 12 weeks of expanded FMLA leave for certain qualifying reasons related to COVID-19, are set to expire on Dec. 31. Remember that employees cannot “cash out” any unused leave. Employees who are out on FFCRA leave in late December should be advised that their leave will expire on Jan. 1. Unless and until Congress decides to extend the FFCRA or provide some other benefit, FFCRA leave benefits end in 2021.

Old fashioned bourbon and new DOL independent contractor regulations: From hipster speakeasies to social media influencers, many mixologists have their own recipes for the classic Old Fashioned cocktail. Similarly, authorities have used a plethora of different legal factors to determine whether a worker is properly classified as an independent contractor for the purposes of determining the applicability of minimum wage and overtime wage requirements under the Fair Labor Standards Act. This is likely to change in the new year. The U.S. Department of Labor has proposed to codify a five-factor test to give employers more certainty about whether a worker is an independent contractor. Those factors include the nature and degree of the employer’s control over the work, the worker’s opportunity for profit or loss, and the amount of skill required in the work. If you are empowering your workers to create their own recipes, you may be able to classify them as independent contractors. Whether you spruce up your cocktail with a smoked sprig of locally grown rosemary or you handcraft artisanal ice cubes, the classic recipe for independent contractor analysis is likely to become more uniform next year.

Moscow Mules and cybersecurity: Unlike the fizzy and fun Moscow Mule, digital safety is not something to take lightly. As if businesses didn’t have enough to worry about, cyberattacks have skyrocketed during 2020. The National Security Agency recently cautioned that Russian hackers are targeting remote work platforms. The huge increase in employees working from home due to the pandemic offers cybercriminals exponentially more threat vectors that can be utilized in attacks on employers. Your vodka might be from Russia with love, but it is essential for companies to soberly and proactively assess security gaps, consider appropriate insurance needs, and adequately back up their data.

Champagne minimum wage increase: Like the bubbles in your champagne glass, Florida’s minimum wage rate is going up. On Nov. 3, Florida voters approved Amendment 2, which amends Florida’s constitution to gradually increase the state minimum wage to $15/hour by the year 2026. This means that starting Jan. 1, 2021, the minimum wage in Florida will increase by $.09 to $8.65/hour. On Sept. 30, 2021, the minimum wage will rise from $8.65/hour to $10/hour. After Sept. 30, 2021, the minimum wage will increase by $1 per year until 2026, as provided by scheduled increases. As their employees toast Amendment 2, employers must make sure to comply.

Mystery punch: The new year will bring a new administration in the federal government. Like any new administration, President-elect Joe Biden will likely seek to change course on a number of policies implemented by the outgoing administration over the last four years. Details on any specific changes are light at the moment, but it is safe to say that this mystery punch has the potential to shake things up.

Whatever your drink of choice on New Year’s Eve, be sure to keep an eye on these issues in 2021. Happy New Year!

Michael represents local governments and corporate clients in labor and employment litigation and commercial litigation. 

Brooke handles labor and employment litigation, commercial litigation, and appellate matters. 

To read the original article in the Daily Business Review, click here. 

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“Be the type of attorney who is available and helpful, you’ll become an attorney that the partners cannot do without,” advised Brooke. “Those who are willing to work hard, take personal responsibility, follow through, and be responsive to clients will set themselves apart as partner material,” she added.

Like many, Brooke, adjusted many aspects of her practice during the COVID-19 pandemic. “From becoming an expert on [Centers for Disease Control and Prevention] guidance for employers and the Families First Coronavirus Response Act to practicing law from home with two small children attending virtual school, my daily routine was turned on its head. The only option is to adjust and adapt to the circumstances.”

Brooke focuses her practice on labor and employment litigation, commercial litigation, and appellate matters. She regularly represents public and private entities in discrimination charges pursuant to state and federal anti-discrimination and wage and hour laws. She also advises clients on employee discipline, retention and termination, employment manuals and policies, and contract interpretation.

To read the full article, click here.

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As the holidays approach, employees may grow weary of taking precautions related to the COVID-19 pandemic and become more social. Employers should be aware of the compliance responsibilities, such as the Families First Coronavirus Response Act and the Fair Labor Standards Act (FLSA).

“Employers that model best practices in the workplace are most likely to encourage workers to comply with mask-wearing rules and social distancing when off duty,” advised Brooke.

Click here to read the full article.

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Due to the COVID-19 health crisis, unemployment has sharply risen, especially among people with disabilities. Approximately one million U.S. workers with disabilities have lost their jobs since the onset of the coronavirus pandemic.

“Individuals with outwardly visible disabilities [might] be disregarded or presumed less capable than their nondisabled counterparts,” said Brooke. “Studies have shown that even the most progressive and inclusive employers can be influenced by implicit bias. In other words, their hiring decisions may be unconsciously influenced by deeply held attitudes and negative stereotypes about disabled individuals.”

Click here to read the full article.

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1. UPDATED RETURN-TO-WORK GUIDANCE

On July 20, 2020, the CDC updated its guidance for determining when individuals with COVID-19 may discontinue isolation and return to work. Whereas the CDC previously recommended either a test-based strategy or a symptom-based strategy, the CDC now recommends that employers should utilize only symptom-based criteria for determining when and how employees may return to work. The guidance provides that persons with COVID-19 who were directed to care for themselves at home may discontinue isolation if:

• At least 10 days have passed since symptom onset and
• At least 24 hours have passed since resolution of fever without the use of fever-reducing medications and
• All COVID-related symptoms (e.g., cough, shortness of breath) have improved.

In light of the CDC’s updated guidance, we recommend that employers follow this symptom-based approach when determining when employees may return to work following an absence due to COVID-19.

2. CAN I STILL REQUIRE EMPLOYEES TO UNDERGO COVID-19 TESTING BEFORE THEY RETURN TO WORK?

Despite the CDC’s latest guidance, the CDC acknowledges that a test-based strategy may be utilized in the following circumstances:

• With individuals who are severely immunocompromised;
• When individuals wish to discontinue isolation or other precautions earlier than would occur under the symptom-based strategy;
• Depending upon a healthcare provider’s advice and the availability of testing.

Note that where a test-based strategy is used, the CDC requires negative test results from at least two (2) consecutive respiratory specimens collected ≥24 hours apart. All test results should be final before isolation is ended.

3. DOES THE 14 DAY QUARANTINE STILL APPLY?

The CDC continues to recommend that individuals with known exposure to COVID-19 undergo fourteen (14) days of quarantine.

4. IMPACT OF CONTINUED SCHOOL CLOSURES

A. CAN EMPLOYEES SEEK EMERGENCY LEAVE FOR SCHOOL CLOSURES IN THE FALL OF 2020?

The Families First Coronavirus Response Act (FFCRA) provides benefits for qualified employees who are unable to work because of the need to care for their child because the child’s school or place of care has been closed due to COVID-19. Although most Florida school districts have not yet formally announced whether or not they will open for on-campus learning in the Fall of 2020, if schools do remain closed, qualified employees will be entitled to Emergency Paid Sick Leave (EPSL) and Emergency FMLA (E-FMLA) benefits under the FFCRA, which is in effect until December 31, 2020 ¹.

B. WILL EMPLOYEES QUALIFY FOR LEAVE UNDER FFCRA IF SCHOOLS GIVE THE OPTION OF IN-PERSON INSTRUCTION OR VIRTUAL LEARNING, AND THEY OPT FOR VIRTUAL LEARNING?

Likely not. If an employee’s child is enrolled in school that opens but gives families the option of virtual learning, the employee will not qualify for EPSL or E-FMLA because the school is not actually closed due to COVID-19. School closure is required for EPSL and E-FMLA benefits under FFCRA.

C. WILL EMPLOYEES QUALIFY FOR LEAVE UNDER FFCRA IF THEIR CHILD’S SCHOOL CLOSES BUT OTHER DISTRICT SCHOOLS OPEN FOR IN-PERSON INSTRUCTION?

This question is up for debate and the DOL has not yet weighed in. On the one hand, employers might reasonably deny FFCRA benefits to employees if there is a potential open school in the employee’s district which could enroll the employee’s child, even if the child’s prior/current school is closed. On the other hand, it might be unreasonable to expect an employee to remove their child from their current school and enroll them in a new school. It might also place an untenable burden on those schools within a district that elect to open up to in-person instruction.

5. CAN EMPLOYERS EXEMPT HEALTH CARE PROVIDERS AND EMERGENCY RESPONDERS IF THEY DID NOT PREVIOUSLY DO SO?

The FFCRA permits employers to exempt health care providers and emergency responders from receiving its leave benefits. Many employers who previously elected not to exempt such employees are now determining that they can no longer operate effectively with their health care providers and/or emergency responders taking leave pursuant to the FFCRA. Because the FFCRA specifically allows employers the option to exempt or not exempt these employees in accordance with their needs, employers may reasonably take steps to change their prior policies with regard to exempting these workers. Any policy change should be done in an equitable, consistent manner.

Under FFCRA, “Health Care Provider includes any individual who is capable of providing health care services necessary to combat the COVID-19 public health emergency, including not only medical professionals, but also workers necessary to keep hospitals and health care facilities supplied and operational, workers involved in research, development, and production of equipment, drugs, vaccines, and other items needed to combat COVID-19. “Emergency Responder” includes those who 1) interact with and aid individuals with physical or mental health issues; 2) ensure the welfare and safety of our communities and Nation; 3) have specialized training relevant to emergency response; and, 4) provide essential services relevant to the public’s health and well-being.

The information contained in this document does not constitute legal advice. If you have questions about the matters discussed, please feel free to contact any of our labor and employment lawyers.

¹ Employees who have already used all 12 weeks (of Emergency-FMLA and/or FMLA leave) in the designated 12 month year are not eligible for additional leave under Emergency-FMLA or FMLA.

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She advised on the recent EEOC updated guideline on whether employers can test their employees for COVID-19, which OSHA standards apply to COVID-19, and much more.

The LiveSafe Prevention Podcast features news analysis and interviews with the leading voices in enterprise risk management, safety and security, and is hosted by former intelligence officer and award-winning, journalist Dan Verton.

Click here to listen to the full podcast.

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Brooke spoke on the recent Families First Coronavirus Response Act (FFCRA), which requires employers with under 500 employees to provide qualified employees with paid emergency sick leave and expands leave under the Family and Medical Leave Act for reasons related to COVID-19.

Drew provided an overview of the Coronavirus Aid, Relief, and Economic Security (CARES) Act, which makes certain business eligible for tax credits, deferred tax payments, and loans through the Paycheck Protection Program (PPP).

The webinar provided valuable guidance in navigating through the legal requirements and understanding of the benefits offered by the FFCRA and CARES Act. The webinar was hosted by the Broward County Bar Association.

The post Partners Brooke Ehrlich and Andrew Demers Present FFCRA and CARES Act Webinar appeared first on Weiss Serota Helfman Cole + Bierman.

• Differences between the Emergency Family and Medical Leave Act (“EFMLA”) and the Family and Medical Leave Act (“FMLA):  EFMLA expires on December 31, 2020, while FMLA has no expiration date.  EFMLA applies to all employers with fewer than 500 employees (including employers with less than 50 employees), while FMLA generally does not apply to employers with fewer than 50 employees.  Employers may exempt health care providers and emergency responders from EFMLA, but not from FMLA.
• Private employers with fewer than 50 employees can deny EPSL and EFMLA in limited circumstances:  A small, private employer is exempt from providing EPSL and EFMLA to care for the employee’s child whose school or place of care is closed and/or unavailable, when 1) such leave would cause the small employer’s expenses and financial obligations to exceed available business revenue and cause the small employer to cease operating a minimal capacity; 2) the absence of the employee(s) requesting such leave would pose a substantial risk to the financial health or operational capacity of the small employer because of their specialized skills, knowledge of the business, or responsibilities; or 3) the small employer cannot find enough other workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the labor or services of the employee(s) requesting leave provide, and those labor or services are needed for the small employer to operate at minimal capacity.  For these reasons, the employer may deny the leave only to those otherwise eligible employees whose absence would cause the employer’s expense and financial obligations to exceed available business revenue, pose a substantial risk, or prevent the small employer from operating at minimum capacity.  This contingency is limited to the “childcare” provisions of FFCRA, and small employers cannot deny EPSL when it is based on the other stated reasons.
• Small private employers must maintain documentation of denial: If an employer with fewer than 50 employee denies the leave (as described immediately above), the small employer must document the facts and circumstances that meet the criteria to justify denial, but is not required to send the documentation to the U.S. Department of Labor (“DOL”).  Instead, the employer should retain these records, in their own files, for at least 4 years.
• Use of personal time off (PTO) under EFMLA:  An eligible employee may elect to use, or an employer may require that an employee use, their EFMLA leave concurrently with any leave offered under the employer’s leave policies (i.e., PTO, vacation lave, or sick leave).
• Intermittent leave is generally permitted:  If the employer and employee agree, the EFMLA and EPSL may be taken intermittently.  The agreement need not be in writing, but the parties must have a clear and mutual understanding about the parameters.  Intermittent leave may be taken even if the employee is otherwise teleworking.
• However, intermittent use of EPSL is prohibited if the employee is exposed to COVID-19 and must report to a worksite:  If emergency leave is sought because the employee 1) is subject to a Federal, State, or local quarantine or isolation order related to COVID-19; 2) has been advised by a health care provider to self-quarantine due to concerns related to COVID-19; 3) is experiencing symptoms of COVID-19 and is taking leave to obtain a medical diagnosis; 4) is caring for an individual who is either subject to a quarantine or isolation order related to COVID-19 or has been advised by a health care provider to self-quarantine due to concerns related to COVID-19; or 5) is experiencing any other substantially similar conditions specified by the Secretary of Health and Human Services, an employee who reports to a worksite is prohibited from taking EPSL on an intermittent basis.  When leave is taken for these reasons, the employee has a high risk of sickness related to (or exposure to) COVID-19 and should not risk reporting to work.
• Parameters of “telework:”  The paid leave provisions of FFCRA apply to employees who are unable to work or “telework.”  Telework means no less work than if it were performed at the worksite.  Employees must record and be compensated for all hours actually worked during telework.  An employer is not required to compensate employees for unreported hours worked while teleworking, unless the employer knew or should have known about the telework.
• Definition of “son” and “daughter” for FFCRA purposes:  FFCRA includes leave for an employee who is unable to work because they must care for a son or daughter whose school, place of care, or childcare provider is unavailable due to the COVID-19 public health emergency.  “Son” or “daughter” includes children under age 18 years of age and children age 18 or older who are incapable of self-care because of a mental or physical disability.
• “Childcare Provider” expanded:  FFCRA includes leave for an employee who is unable to work because they must care for a son or daughter whose school, place of care, or childcare provider is unavailable due to the COVID-19 public health emergency.  In addition to providers who receive compensation for providing child care on a regular basis (and are licensed and regulated under State Law), “childcare provider” can also include an unpaid family member or friend who regularly cares for the employee’s child.
• Impact of local quarantine or isolation orders:  The first qualifying reason for EPSL is when an employee is unable to work because he or she is subject to a Federal, State, or local COVID-19 quarantine or isolation order.  Quarantine or isolation order includes when a Federal, State, or local government authority has advised categories of citizens (e.g. of certain age ranges or of certain medical conditions) to shelter in place, stay at home, isolate, or quarantine, causing these categories of employees to be unable to work.
• Self-quarantine, explained:  The second qualifying reason for EPSL is when an employee is unable to work because he or she has been advised by a health care provider to self-quarantine for a COVID-19 reason.  The advice to self-quarantine must be based upon a health care provider’s belief that the employee either 1) has or may have COVID-19 or 2) is particularly vulnerable to COVID-19.  In order to qualify under this category, the self-quarantining must prevent the employee from working or teleworking.
• Seeking a medical diagnosis, explained:  The third qualifying reason for EPSL is when an employee is experiencing symptoms of COVID-19 and is seeking a medical diagnosis.  The triggering symptoms are fever, dry cough, shortness of breath, or other symptoms identified by the U.S. Center for Disease Control (“CDC”).  Leave taken for this reason is limited to the time the employee is unable to work because he/she is taking affirmative steps to obtain a diagnosis.
• Requests for leave to care for a child:  An employee requesting to take EPSL (under category 5) or EFMLA to care for his or her child must provide 1) the name of the child being cared for; 2) the name of the school, place of care, or childcare provider that closed or became unavailable due to COVID-19 reasons; and 3) a statement representing that no other suitable person is available to care for the child during the period of requested leave.
• Two-parent households:  Generally, an employee does not need to take emergency leave if another suitable individual (co-parent, co-guardian, or usual childcare provider) is available to provide the necessary care.  An employee’s request for EPSL and/or EFMLA must include a statement representing that no other suitable person is available to care for the child during the period of the requested leave.  However, there is no mechanism for an employer to verify the availability of another co-parent.
• Who qualifies as a “Health Care Provider:”  This category includes any individual who is capable of providing health care services necessary to combat the COVID-19 public health emergency, including not only medical professionals, but also workers necessary to keep hospitals and health care facilities supplied and operational, workers involved in research, development, and production of equipment, drugs, vaccines, and other items needed to combat COVID-19.
• Who qualifies as an “Emergency Responder:” This category includes those who 1) interact with and aid individuals with physical or mental health issues; 2) ensure the welfare and safety of our communities and Nation; 3) have specialized training relevant to emergency response; and, 4) provide essential services relevant to the public’s health and well-being.
• Health care coverage: An employee who takes EFMLA is entitled to continued coverage under the employer’s group health plan and on the same terms as if the employee did not take leave.  Employees in a group health plan who take EPSL or EFMLA are responsible for paying the same portion of the plan premium that the employee paid prior to taking such leave.  If the premiums are adjusted, the employee is required to pay the new employee premium contribution on the same terms as other employees.
• Tax reimbursements for private employers:  Private (not public) employers qualify for reimbursement through refundable tax credits from the Dept. of Treasury, for all qualifying wages paid under the Emergency Paid Sick Leave Act (EPSLA) and Emergency Family and Medical Leave Act (EFMLA).
• Layoffs are permitted.  FFCRA does not protect an employee from employment actions, such as layoffs, that would have affected the employee regardless of whether or not the leave was taken.  The employer, however, must demonstrate that the employee would have been laid off even if he or she had not taken the leave.
• Keep FFCRA records for 4 years:  An employer is required to retain all documentation provided pursuant to FFCRA for 4 years, regardless of whether or not the leave was granted or denied.  If the employee provided oral statements to support his/her request for leave, the employer must document and retain such information for 4 years.

The information contained in this document does not constitute legal advice.  If you have questions about the matters discussed, please feel free to contact any of our labor and employment lawyers.

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On Friday, March 13, 2020, the U.S. House of Representatives passed the Families First Coronavirus Response Act (the “Act”). If passed by the U.S. Senate, the Act will have ramifications on employers throughout the Country. Although a Senate vote is not yet scheduled, a vote is expected in the coming days. We will continue to keep you updated as to any potential amendments to the Act.

The charts below summarize the benefits proposed by the version of HR 6201 issued on March 13, 2020.

1. Additional Paid Sick Time Off During Public Health Emergency

2. Paid Sick Time Accruals

3. Emergency FMLA Leave

4. Emergency Leave Pay

[1] Employers with 50 or fewer employees may seek reimbursement from the Secretary of Treasury for the costs of providing the 2 weeks of additional paid sick leave.

[2] The portion of the bill includes an enforcement mechanism, making it unlawful for a covered employer to restrain or deny the exercise of any right provided under the Act. It also makes it unlawful to consider taking paid sick time as a negative factor in any employment action or to count the paid sick time under a no-fault attendance policy or any other absence control policy. An aggrieved individual may assert a cause of action against any employer who violates these provisions and seek injunctive relief, damages (in the form of wages, salary, employment benefits, or other compensation) plus interest, liquidated damages, equitable relief, and attorney’s fees and costs.

[3] If an employee’s normal workweek is less than 40 hours, the employee shall earn paid sick time based upon their normal workweek.

[4] Employees are only entitled to 12 workweeks of leave during any 12 month period (i.e. this is not in addition to any other FMLA leave).

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