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Florida Employers now must give employees paid sick leave and emergency FMLA

Florida employer sued for how it responded to employee testing positive for COVID-19.

On July 1, 2020, an employer located in Pembroke Pines, Florida was sued for how it mishandled an employee testing positive for COVID-19. Constance v. Hollybrook Golf and Tennis Club Condominium, Inc., 0:20-cv-61312 (S.D. Fla. July 1, 2020).

If your Florida business has not yet experienced an employee testing positive for COVOD-19, keep reading because it is likely to happen and it is crucial that you know how to respond, and what to avoid.

According to the lawsuit that was filed in the Southern District of Florida, a maintenance supervisor reported to his immediate supervisor that he had been experiencing symptoms of COVID-19, including shortness of breath and chest tightness. Because of his symptoms, the employee advised that he was going to take time off from work and get tested for COVID-19. The employee also recommended to his boss that the business inform the employees that he supervised to get tested. This was because the employer was a retirement community that was also a golf and tennis club and the employee was concerned for the club’s residents and members. As a 55 and older community, the age of the residents and members makes some

of them particularly vulnerable to COVID-19.

Despite this vulnerability and his symptoms, the employee was directed by the general manager, not to share this information with the club’s residents.

The same day that his test results came back, the employee informed his employer of his positive COVID-19 test result. The employee again voiced his concerns for his coworkers and recommended the employees he supervised and interacted with daily be tested.

Again, the employee was instructed by the employer to not tell these employees—or the residents—about his diagnosis to avoid “chaos.”

The employee’s diagnosis resulted in his doctor’s instructions to self-isolate. This self-isolation was also required by governmental order. The employee remained self-isolated in quarantine and made a full recovery and his doctor released him to return to work.

When the employee returned to work, he was immediately terminated. Following his termination, one of his co-workers died due to COVID-19.

The employee sued the employer under the Families First Coronavirus Response Act (“FFCRA”) and Emergency Paid Sick Leave Act (“EPSLA”).

The employee was entitled to up to two weeks (or 80 hours) of paid sick leave pursuant to the EPSLA because he was advised by a health care provider to self-isolate (and was required to do so by governmental order) due to his COVID-19 diagnosis. Yet, his employer blatantly disregarded its obligations under the EPSLA and forced him to use his paid time off for his entire absence. This is a direct violation of EPSLA’s requirements, and the employee argued that the employer’s conduct was a “willful” violation. The employee is asking the jury to award money for unpaid sick leave wages, lost wages and benefits, including front pay, back pay with prejudgment interest, liquidated damages, and other remuneration for physical and mental pain, anguish, pain and humiliation from being terminated due to the loss of his long-term employment, and most significantly an award of attorney’s fees and costs and punitive damages.

In addition to that part of the lawsuit, the employee is also suing for retaliation under the FFCRA. The EPSLA prohibits employers from discharging or otherwise discriminating against any employee because the employee took qualifying paid sick leave. Despite the EPSLA’s requirements, the employee claims that the employer unlawfully terminated him after he took leave as a result of his COVID-19 diagnosis.

As an example of what the employer can expect at trial, the employee stated in his lawsuit, “Falling victim to COVID-19 was not enough. The Club re-victimized [the employee], who dedicated over 21 years of his life to the Club, by terminating him in direct violation of the EPSLA’s mandates.”

Although this is a very recent lawsuit, it is being brought in Florida and it should send a powerful message to Florida employers that it is crucial that they seek assistance from experienced employment counsel to help navigate the FFCRA. If you have an employee test positive for COVID-19, you should immediately coordinate with your counsel to help guide you through the necessary steps.

If your Florida business needs any assistance in handling COVID-19 issues or paid leave matters, please promptly email the Law Office of David Miklas, P.A. or call us at 1-772-465-5111.

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