Florida Employers now must give employees paid sick leave and emergency FMLA.
Yes, that is correct. Small businesses in Florida should have already heard about this on the news and social media, but in case you are not aware, you need to read this article.
On March 18, 2020 President Trump signed into law the Families First Coronavirus Response Act (FFCRA). This law went into effect on April 1, 2020.
Am I required to post the new notice / poster? Well, you should have already posted the new poster on April 1. Here is the poster in English and here is the poster in Spanish (additional languages at end of article).
The poster(s) must be posted immediately by every private business with fewer than 500 employees and most public (municipal) employers. Where do you post it? Next to the rest of your required federal and state posters. Basically, the poster/notice must be posted in a conspicuous place on the business premises. If you have employees working from home, you may satisfy this requirement by emailing or direct mailing this notice to employees, or posting this notice on an employee information internal or external website.
What exactly does the FFCRA do? Read the poster, because it is a concise, one-page explanation of what the employer is supposed to do. Basically, the FFCRA creates the Emergency Paid Sick Leave Act (EPSLA) and Emergency Family and Medical Leave Expansion Act (EFMLEA), both part of the Families First Coronavirus Response Act (FFCRA). The first part requires Florida employers to provide Emergency Paid Sick Leave (EPSL) to employees in certain circumstances. The second part requires Florida employers to provide expanded or emergency Family and Medical Leave (EFML) to employees in certain circumstances. These provisions will apply from April 1, 2020 through December 31, 2020.
Can small businesses just ignore this? Our business is too small to worry about the FMLA.
The number of employees you have is key. Do you have 1-499 employees? If yes, keep reading.
- If you have under 500 employees, your business is required to provide paid leave under both programs, and post the notice/poster. These two new provisions apply to most public (municipal) employers and private employers that have fewer than 500 employees.
- If you have fewer than 50 employees, your business might be partially exempt (see below).
Our business already gives employees paid leave (PTO), can we make the employees use their PTO instead of this new paid leave?
No. Both of these new programs are in addition to any leave you already offer. Also, you cannot force employees to use their paid leave, sick or vacation for any of the COVID-19 reasons (explained below).
Who is eligible for this new leave?
For EPSL: An employee is immediately eligible for paid sick leave.
For EFMLA: Any full-time or part-time employee that has been on the employer’s payroll for 30 calendar days.
This means that all employees of covered employers are eligible for two weeks of paid sick time for specified reasons related to COVID-19. Employees employed for at least 30 days are eligible for up to an additional 10 weeks of paid family leave to care for a child under certain circumstances related to COVID-19
What are the reasons for Paid Sick Leave (EPSL)? An employee is entitled to take leave related to COVID-19 if the employee is unable to work, including unable to telework, 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 related to COVID-19;
3. is experiencing COVID-19 symptoms and is seeking a medical diagnosis;
4. is caring for an individual subject to an order described in (1) or self-quarantine as described in (2);
5. is caring for his or her child whose school or place of care is closed (or child care provider is unavailable) due to COVID-19 related reasons; or
6. is experiencing any other substantially-similar condition specified by the U.S. Department of Health and Human Services.
How much paid leave does the employee receive? It depends on which of the six reasons is the basis for why they are taking the leave.
If the employee qualifies for the leave because of reasons #1 - #3 above, then the employee is entitled to 100% of their pay, not to exceed a maximum of $511 per day, or $5,110 total over the entire paid sick leave period. An employer may not require an employee to use other paid leave (such as PTO) provided by the employer before the employee uses the paid sick leave available under the FFCRA.
If the employee qualifies for the leave because of reasons #4 or #6 above, then the employee is entitled to 2/3 of their pay, not to exceed a maximum of $200 per day, or $2,000 total over the entire paid sick leave period. An employer may not require an employee to use other paid leave (such as PTO) provided by the employer before the employee uses the paid sick leave available under the FFCRA.
If the employee qualifies for the leave because of reason #5 above, then the employee is entitled to 2/3 of their pay, not to exceed a maximum of $200 per day, or $12,000 total over the entire paid sick leave period.
For reason # 5, an employee is entitled to take up to twelve weeks of EFMLEA leave. The first two weeks (usually ten workdays) of this leave are unpaid, but an employee may choose to substitute paid sick leave under the EPSLA or paid leave under the employer’s preexisting policies for these two weeks of unpaid leave. For reason #5, after the first two weeks of leave, expanded family and medical leave under the FFCRA must be paid at two-thirds the employee’s regular rate of pay for an additional period of up to ten weeks. Under reason #5 an employee may be entitled to a maximum of $12,000 of paid leave because the total EFMLEA payment per employee for this ten-week period is capped at $200 per day and $10,000 in the aggregate, for a total of no more than $12,000 when combined with two weeks of paid leave taken under the EPSLA.
What about small employers? Are they exempt?
Yes and no. Small employers with fewer than 50 employees may qualify for an exemption from the requirement to provide paid leave due to school, place of care, or child care provider closings or unavailability, if the leave payments would jeopardize the viability of their business as a going concern. This is only reason #5. Therefore, a small employer is exempt from the requirement to provide such leave 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 at a minimal capacity;
(2) the absence of the employee or employees 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 the employee or employees requesting leave provide, and these labor or services are needed for the small employer to operate at a minimal capacity.
For reasons (1), (2), and (3), the employer may deny paid sick leave or expanded family and medical leave only to those otherwise eligible employees whose absence would cause the small employer’s expenses and financial obligations to exceed available business revenue, pose a substantial risk, or prevent the small employer from operating at minimum capacity, respectively.
Furthermore, if a small employer decides to deny paid sick leave or expanded family and medical leave to an employee or employees whose child’s school or place of care is closed, or whose child care provider is unavailable, the small employer must document the facts and circumstances that meet the above criteria to justify such denial. The DOL has warned employers to not send such material or documentation to the DOL, but rather should retain such records for its own files (to be able to prove the defense if challenged).
A deeper look at the six reasons for paid leave under the FFCRA:
1. The employee is subject to a Federal, State, or local quarantine or isolation order related to COVID-19:
For the purposes of the EPSLA, a quarantine or isolation order includes quarantine, isolation, containment, shelter-in-place, or stay-at-home orders issued by any Federal, State, or local government authority that cause the Employee to be unable to work even though his or her Employer has work that the Employee could perform but for the order. This also 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 those categories of Employees to be unable to work even though their Employers have work for them. However, even if an employee is subject to one of these orders, they may not be eligible to take paid sick leave if the employee is able to telework.
The employer must carefully analyze exactly what prevents the employee from working. For example, if a business closes temporarily or indefinitely due to a downturn in business related to COVID-19, it would no longer have any work for its employees. An employee previously employed at the business who is also subject to a stay-at-home order would not be able to work (because the business is closed) even if he were not required to stay at home. As such, he may not qualify under reason #1 to take paid sick leave because his inability to work is not due to his need to comply with the stay-at-home order, but rather due to the closure of his place of employment.
2. The employee has been advised by a health care provider to self-quarantine related to COVID-19:
For the purposes of the EPSLA, the advice to self-quarantine must be based on the health care provider’s belief that the employee has COVID-19, may have COVID-19, or is particularly vulnerable to COVID-19. And, self-quarantining must prevent the employee from working. An employee who is self-quarantining is able to telework, therefore may not take paid sick leave for this reason, if (a) the employer has work for the employee to perform; (b) the employer permits the employee to perform that work from the location where the employee is self-quarantining; and (c) there are no extenuating circumstances, such as serious COVID-19 symptoms, that prevent the employee from performing that work. For instance, if an employee is able to work on a laptop while self-quarantining at home, she may not take paid sick leave due to reason #2.
When can an employee take Paid Sick Leave under reason #2?
If both of the following happen:
1) a health care provider advises the employee to self-quarantine based on a belief that either:
(A) the Employee has COVID-19;
(B) the Employee may have COVID-19; or
(C) the Employee is particularly vulnerable to COVID-19; and
2) following the advice of a health care provider to self-quarantine prevents the employee from being able to work, either at the employee’s normal workplace or by telework.
An employee requesting paid sick leave under reason #2 (of the six FFCRA reasons) must provide to the employer the name of the health care provider who advised him or her to self-quarantine for COVID-19 related reasons.
3. The employee is experiencing COVID-19 symptoms and is seeking a medical diagnosis:
For the purposes of the EPSLA, an employee experiencing COVID-19 symptoms may take paid sick leave, for time spent making, waiting for, or attending an appointment for a test for COVID-19. But, the employee may not take paid sick leave to self-quarantine without seeking a medical diagnosis.
If an employee is waiting for the results of a test but that employee is able to telework, that employee may not take paid sick leave, if:
(a) the employer has work for the employee to perform;
(b) the employer permits the employee to perform that work from the location where the employee is waiting; and
(c) there are no extenuating circumstances, such as serious COVID-19 symptoms, that may prevent the employee from performing that work.
An employee may continue to take leave if the employee is:
(a) experiencing any of the COVID-19 symptoms (fever, dry cough, shortness of breath), or
(b) after testing positive for COVID-19, regardless of symptoms experienced, provided that the health care provider advises the employee to self-quarantine.
If an employee exhibits COVID-19 symptoms and seeks medical advice but is told that he or she does not meet the criteria for testing and is advised to self-quarantine, that employee is may be eligible for paid leave under reason #2 above.
4. The employee is caring for an individual subject to an order described in reason #1 or self-quarantine as described in reason #2:
For the purposes of the EPSLA, the employee must have a genuine need to care for the individual. This means that paid sick leave may not be taken to care for someone with whom the employee has no personal relationship. Rather, the individual being cared for must be an immediate family member, roommate, or a similar person with whom the employee has a relationship that creates an expectation that the employee would care for the person if he or she self-quarantined or was quarantined. Additionally, the individual being cared for must: (a) be subject to a Federal, State, or local quarantine or isolation order as described in #1; or (b) have been advised by a health care provider to self-quarantine based on a belief that he or she has COVID-19, may have COVID-19, or is particularly vulnerable to COVID-19.
An employee requesting paid sick leave under reason #4 must provide either (1) the government entity that issued the quarantine or isolation order to which the individual is subject or (2) the name of the health care provider who advised the individual to self-quarantine, depending on the precise reason for the request.
Also, if the employer does not have work for the employee, the employee caring for an individual may not take paid sick leave.
5. The employee is caring for his or her child whose school or place of care is closed (or child care provider is unavailable) due to COVID-19 related reasons:
An employee may take paid sick leave to care for his or her child only when the employee needs to, and actually is, caring for his or her child. Generally, an employee does not need to take such leave if another suitable individual (such as a co-parent, co-guardian, or the usual child care provider) is available to provide the care the employee’s child needs.
The DOL’s definition of child includes children under 18 years of age and children age 18 or older who are incapable of self-care because of a mental or physical disability).
An employee may agree with an employer to perform telework for COVID-19 related reasons on the following schedule: 7-9 a.m., 12:30-3 p.m., and 7-9 p.m. on weekdays. This allows an employee, for example, to help teach children whose school is closed or assist the employee’s parents who are temporarily living with the family, reserving work times when there are fewer distractions. Of course, the employer must compensate the employee for all hours actually worked—6.5 hours—that day, but not all 14 hours between the employee’s first principal activity at 7 a.m. and last at 9 p.m.
An employee requesting to take paid sick leave under reason #5 or expanded family and medical leave to care for his or her child must provide the following information: (1) the name of the child being care for; (2) the name of the school, place of care, or child care 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.
6. The employee is experiencing any other substantially-similar condition specified by the U.S. Department of Health and Human Services.
The substantially similar condition may be defined at any point during the FFCRA’s effective period, which is April 1, 2020, to December 31, 2020.
How do we calculate paid leave for part-time employees?
Because there are fourteen calendar days over a two-week period, the DOL interprets that the EPSLA provides part-time employees (whose weekly schedule varies) with paid sick leave equal to fourteen times the number of hours that the employee was scheduled per calendar day. This should be averaged over the previous six-months. An employer may also use twice the number of hours that an employee was scheduled to work per workweek, averaged over the six-month period. If the employee has been employed for less than six months, the average hours per workweek is computed over the entire period of employment.
Does this new EFMLA leave require the business to restore the employee to their position when their leave is over?
It depends. Generally, yes, in most instances, an employee is entitled to be restored to the same or an equivalent position upon return from paid sick leave or expanded family and medical leave in the same manner that an employee would be returned to work after FMLA leave. See the FMLA job restoration provisions at 29 CFR 825.214 and the FMLA equivalent position provisions at 29 CFR 825.215.
However, the new EFMLA does not protect an employee from employment actions, such as layoffs, that would have affected the employee regardless of whether the leave was taken. If a Florida employer lays off or terminates an employee while they are out on EFMLA leave the employer must be able to demonstrate that the employee would have been laid off / terminated even if he or she had not taken leave. This means that, in order to deny restoration of employment, the employer will have the burden of proof to show that an employee would not otherwise have been employed at the time reinstatement is requested.
Small employers (1-24 employees) do not have to restore an employee who went on EFMLA if all four of the following conditions are met:
1. The employee took leave to care for his or her son or daughter whose school or place of care was closed or whose child care provider was unavailable;
2. The employee’s position no longer exists due to economic or operating conditions that (i) affect employment and (ii) are caused by a public health emergency (i.e., due to COVID-19 related reasons) during the period of the employee’s leave;
3. The employer made reasonable efforts to restore the employee to the same or an equivalent position; and
4. If the employer’s reasonable efforts to restore the employee fail, the employer makes reasonable efforts for a period of time to contact the employee if an equivalent position becomes available. The period of time is specified to be one year beginning either on the date the leave related to COVID-19 reasons concludes or the date twelve weeks after the employee’s leave began, whichever is earlier.
The following resources should be very helpful for Florida employers:
The Department of Labor issued regulations interpreting the FFCRA. These span 124 pages, but the final version is formatted to only take up 32 pages
The DOL has put together a EPSL fact sheet for employers
The DOL has issued an FFCRA Q & A
FFCRA poster in English
FFCRA poster in Spanish
FFCRA poster in Portuguese
FFCRA poster in Russian
FFCRA poster in Tagalog
The EEOC has provided guidance entitled Pandemic Preparedness in the Workplace and the Americans With Disabilities Act [PDF version] that can help employers implement strategies to navigate the impact of COVID-19 in the workplace. This pandemic publication, written during the prior H1N1 outbreak, is still relevant today and identifies established ADA and Rehabilitation Act principles to answer questions frequently asked about the workplace during a pandemic. It was updated on March 19, 2020 to address examples and information regarding COVID-19; the new information appears in bold.
The EEOC also released a document called, What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws which expands on a previous publication that focused on the ADA and Rehabilitation Act. This new April 2020 document from the EEOC now adds questions-and-answers to respond to common inquiries, such as:
- If a job may only be performed at the workplace, are there reasonable accommodations for individuals with disabilities absent undue hardship that could offer protection to an employee who, due to a preexisting disability, is at higher risk from COVID-19? (D.1)
- If an employee has a preexisting mental illness or disorder that has been exacerbated by the COVID-19 pandemic, may he now be entitled to a reasonable accommodation (absent undue hardship)? (D.2)
- In a workplace where all employees are required to telework during this time, should an employer postpone discussing a request from an employee with a disability for an accommodation that will not be needed until he returns to the workplace when mandatory telework ends? (D.3)
- What if an employee was already receiving a reasonable accommodation prior to the COVID-19 pandemic and now requests an additional or altered accommodation? (D.4)
The CDC has many good resources for Florida employers: One example is a list of COVID-19 symptoms, and voluntary posters to educate employees
The CDC also issued guidance to help employers discontinue the isolation for persons with COVID-19 (who are not in healthcare settings). Employers should review this before allowing an employee who had COVID-19 symptoms to return back to work.
Florida’s unemployment just issued 6-pages of FAQ’s:
Executive Order in Florida
On April 1, 2020, Florida’s Governor has issued a state-wide order that took effect April 3, 2020, and lasts until April 30, 2020, unless extended. Some language in the Safer at Home order confused many Florida businesses and lawyers. Specifically, the confusing language states:
A. Senior citizens and individuals with a significant underlying medical condition (such as chronic lung disease, moderate-to-severe asthma, serious heart conditions, immunocompromised status, cancer, diabetes, severe obesity, renal failure and liver disease) shall stay at home and take all measures to limit the risk of exposure to COVID-19.
B. In concert with the efforts of President Trump and the White House Corona virus Task Force to fight COVID-19, and based on guidance provided by Florida Surgeon General and State Health Officer, Dr. Scott Rivkees, all persons in Florida shall limit their movements and personal interactions outside of their home to only those necessary to obtain or provide essential services or conduct essential activities.
After reading the highlighted language it was confusing whether senior citizens (unclear what that means, as it was not defined) and individuals with significant medical conditions were allowed to leave their homes to work at a location that provides essential services. The 34-page Executive Order is available here and it includes a detailed list of positions that are considered essential services.
The Governor’s office then issued a FAQ for this Executive Order that partially addresses the confusion (see the third question on page 1).
This clarification is the following:
Q. May senior citizens and individuals with significant medical conditions leave their homes to go to the grocery store or pharmacy, or go for a walk, or go to work at an essential service?
A. Yes - they may leave their homes when necessary to obtain or provide essential services or conduct essential activities.
This means that if your specific organization falls within any of the exemptions listed in the Executive Order as an essential service, then you may permit senior citizens and those with significant medical conditions to perform work for your organizations during the time period of the Executive Order if the employee wants to perform those services. If the employee does not want to perform those services, then you should contact your employment counsel for legal advice on how to proceed.
This is a fluid situation for Florida employers and businesses most likely may need to contact en experienced employment lawyer to assist them during these challenging times. If you would like to contact David Miklas, you may do so by email or by calling 1-772-465-5111.