The Emergency Temporary Standard (ETS), newly issued by the Occupational Safety and Health Administration (OSHA), requires compliance by all companies with over 100 employees. This rule establishes new regulations associated with employers’ COVID-19 safety standards and has firm deadlines to maintain compliance

To aid companies that may be affected by the ETS, this guide, which includes common questions and answers, will assist in navigating this new OSHA standard.

  1. What actions must employers take within the next thirty (30) days (by SUNDAY, December 5, 2021)?

It is not sufficient to post the ETS in your breakroom or email it to all employees. This ETS requires that companies institute a written policy and procedure document that incorporates the ETS’ requirements and stipulates how those will be applied throughout the Company. Failure to furnish this information to employees by Sunday, December 5, 2021, could result in fines for non-compliance with OSHA’s ETS.

There are currently no exemptions for social distancing or sitting in an enclosed office. The ETS states that the Company is required to “ensure that each employee who is not fully vaccinated wears a face covering when indoors…”

The mask mandate is required to be instituted by employers by December 5, 2021. Further, Employers are required to implement policies and procedures that ensure that their employees are compliant with this mask mandate.

OSHA can, and will, request this information during an inspection. Employers should err on the side of caution and have all employees send their vaccination cards to the company’s Human Resources representative for storage in their medical records file. The Employer should maintain an updated list of each employee and their vaccination status.

2. What actions must employers take within sixty (60) days? (by TUESDAY, January 4, 2022)?

3. Are there any exemptions?

4. What are the consequences for not complying with OSHA’s ETS?

OSHA can fine an Employer $13,653.00 per violation. For example, if an Employer is cited for three unvaccinated persons working indoors and not wearing masks, then the Employer could be fined for each one separately totaling $40,959.00.

If OSHA determines that an Employer is willfully violating its ETS, then it can fine up to $136,532.00 per violation.

5. For Your Information

Employers are required to report any COVID-19 employee hospitalizations directly to OSHA within twenty-four (24) hours of finding out about the hospitalization. If an employee dies from COVID-19, the Employer is required to notify OSHA within eight (8) hours of finding out about the Employee’s death.

Employers are required to make available to employees and their representatives the aggregate number of fully vaccinated employees within the workplace along with the total number of employees at that workplace. Since this provision states specifically “at that workplace”, an Employer with employees at multiple locations is required to provide this information for each separate location.

6. Where do we go from here?

While the lawsuits snake their way through the legal systems, employers must take action to ensure compliance and to avoid any fines or complaints for noncompliance. Employers should not wait and see if an injunction is issued that may delay these deadlines. Given the proximity to the holiday season, employers need to be prepared and ready to comply.

Questions? Contact us!

If you have any questions or need assistance in preparing a policy that complies with the ETS, please do not hesitate to contact our labor and employment attorneys at Shuffield, Lowman & Wilson, P.A. We look forward to helping you protect your business!


 

Following President Biden’s late-day bombshell of a press interview on Thursday, September 9, 2021, employers frantically researched various policies and standards over the weekend. The dilemma facing many employers includes the current labor force shortage juxtaposed against the politically charged vaccination efforts. While OSHA can, and will, fine employers for failing to provide safe and healthy work environments for their employees, those requirements typically include such regulations such as wearing steel-toed boots and hard hats during work hours, yellow vests while entering work floors, or the prohibition of wearing jewelry in and around certain equipment. These logical requirements, while not preferred by some or maybe even most employees, are at least justifiable for why such measures are required and easily explained by employers. But, how far can the government legislate to promote the health and safety of employees? The above-cited examples do not impact a worker’s bodily integrity, do not violate an employee’s religious or medical rights (for the most part) and the consequences for noncompliance are easily understood. Indeed, if you wear a 30-inch necklace that gets caught in a printing machine, you could lose your head. That type of consequence is real, and employees understand them.

With the COVID-19 vaccine, there is no quantifiable consequence. The research shows that a fully vaccinated person can still be a carrier of the virus and infect other individuals. Also, and as new strains develop, vaccinated persons are not immune from catching the virus. Employers may find it difficult to justify to their workforce the purpose of these rules. Unfortunately, the consequences for abstaining from the vaccine are too intangible for an employer to justify the reasoning behind requiring vaccinations of all employees. The only explanation an employer may provide at this juncture is, “because the government requires it.” This serves as a drastic contrast to previous OSHA standards where the prevented harm is foreseeable.

Despite its intangible consequences, the Federal Government, using health and safety standards concerns intends to require that all employees of companies exceeding 100 employees must obtain a COVID-19 vaccine. But in today’s climate with the politically charged controversy enveloping the COVID-19 vaccines, a deficient labor force, and unclear consequences for failing to obtain the COVID-19 vaccine, can OSHA enforce a mandate such as one proposed by President Biden? Historically, OSHA has neglected to institute a similar mandate relating to the annual influenza vaccine. While it “expects facilities providing healthcare services to perform a risk assessment of their workplace and encourages healthcare employers to offer both the seasonal and H1N1 vaccine…OSHA does not specifically require employees to take the vaccines, an employer may do so.” See 2009 OSHA Letter regarding Influenza Vaccine Mandate. All OSHA standards through the present instituted mandates related to uniform or attire standards worn by workers, and various requirements concerning spacing and location of machinery, the storage of categorized materials such as chemicals, and conducted inspections of various employer’s facilities to ensure compliance with its imposed industry standards. Until now, OSHA has declined to require vaccinations and has left that decision up to individual employers.

While Biden’s speech failed to provide exemptions for the vaccine based on religious or health-related grounds, he does state that employees who refuse to get vaccinated must be tested once per week. Testing allows objectors to the vaccine to continue employment by providing an exception, but President Biden failed to articulate who would bear the cost of the testing, if the employer would be required to pay the employee to take time off to take the test, and how the employer is required to maintain the test results from the employee.

This latest policy by the federal government leaves employers nervously wondering – Can the Government require such measures? In the interest of public health and safety, where is the line drawn? OSHA historically has declined to require vaccines by employees. This deviation from prior policy will assuredly lead to a mass influx of litigation instituted to contest the enforceability of such measures. This litigation will largely come down to the interpretation of the federal government’s justification that it has the ability to require individual Americans to obtain the COVID-19 vaccine. However, and while these measures snake through the slow channels of the courts, what are employers supposed to do right now? Today?

Right now, employers should wait until further guidance is published by OSHA. A rule has not been promulgated yet. Until then, we can only hypothesize what the proposed rule from OSHA will include based on the content within the President’s speech.

Unfortunately, President Biden’s speech left open insurmountable questions that are simply just not available at this time. For instance, how many employees equal 100? Does that include independent contractors? What about part-time employees? What about subsidiaries and any employees classified as working with those subsidiaries – are they counted towards the 100? What are the OSHA fines associated with refusing to enforce COVID-19 vaccines within its workplace? (Reports state that fines could be up to $14,000.00 but is that per employee, per inspection, and a finding of non-compliance, or as a total?) Will refusal to institute such requirements make more sense in an employer’s cost-benefit analysis than potentially alienating employees who may quit their job in response? How will OSHA conduct inspections into whether or not the workforce of an eligible employer is compliant? Are employers fined for employees refusing to obtain the vaccine requiring the employers to terminate their employees? When will these rules go into effect? These questions may be answered following OSHA’s new rule which is forthcoming according to various reports.

Inevitably, Courts must grapple with the differing political ideologies on the COVID-19 vaccine and will be the ultimate decider in this evolving landscape debate between personal integrity v. worldwide health and safety concerns. Here in Florida, a Leon County Circuit Court Judge determined that the Governor overstepped his authority in instituting a ban against mask-wearing mandates for education facilities.  See Governor Ron DeSantis, et al. v. Allison Scott, et al., Case No. 2021-CA-1382, Leon County Civil Circuit Court.  On appeal, the First District Court of Appeals issued a one-page ruling quashing the stay and stating that “we have serious doubts about standing, jurisdiction, and other threshold matters. These doubts significantly militate against the likelihood of the appellee’s ultimate success in this appeal.” See September 10, 2021 Order.  The stay, while remaining in place for the purposes of the appeal, is evidence that the Court of Appeals could rule in favor of Governor DeSantis having authority to institute a statewide ban on mask mandates for Florida school districts.

Conversely, a Southern District Court Judge intervened against a law that prevented cruise liners from requiring customers to be fully vaccinated prior to sailing with the cruise liners. That Judge states that such measures violate a business’ integrity as companies attempt to “reopen.” See Judge Kathleen Williams’ Order in Norwegian Cruise Line Holdings, Ltd., et al. v. Scott Rivkees, M.D., Case No. 21-CV- 22492-KMW (S.D. Fla. 2021). While this Court Order directly analyzed the cruising industry with particularity, the reasoning behind the Order could apply across many industries. What seems to be the essence of these most recent orders is that the government should refrain from prohibiting or legislating vaccine bans or mandates. Judge Williams’ order has been appealed and is presently pending before the United States 11th Circuit and will likely be addressed by the Supreme Court of the United States.

Ultimately, this unpredictable and expensive litigation provides little to no relief to frustrated employers who simply want to go about their business and avoid politics in the workplace. Unfortunately, for both employers and employees, it appears that avoiding these contentious discussions will soon come to an end and many business owners are going to have to make difficult choices moving forward.

The labor and employment attorneys at Shuffield, Lowman & Wilson are happy to answer any questions and assist with preparing policies to protect your company and your workforce so that you can focus on your business.

How will the new normal of Covid-19 affect our culture? It’s hard to know but we should focus on what we can control. External factors are hard to control but internal factors such as communication are within our control, and it helps us form our new normal for our organization. The current situation is really an opportunity for a culture shift or a refinement.

Navigating a global pandemic is tough enough to do, more so when there are direct impacts on our day-to-day businesses. However, the silver lining when going through something like COVID-19 is the enormous amount of intelligence and insight we gain. We can’t predict the future but we can position our people and company to be ready when the time comes. Create a crisis recovery and contingency plan and encourage feedback from external and internal sources. Continue exploring the benefits of having remote workers, and consider revisiting your strategic plan to ensure you have the capital, management team and goals in alignment.
 
 

Attorneys Alex Douglas and Stephanie Cook recently contributed to a Florida Bar Real Property, Probate and Trust Law Section’s (RPPTL) ActionLine article: “As the RPPTL World Turns: The Impact of the Pandemic and Remote/Zoom Hearings, Depositions, and Mediations on Your Trusts and Estates Litigation Practices.”  The authors performed a series of interviews with a cross-section of RPPTL Section members who practice primarily Trusts and Estates Litigation. The interviews were designed to learn how their practices have been impacted by the COVID-19 pandemic. The article covered topics including working from home, Zoom hearings, depositions, mediations, business development, technology, and captured the attorney’s post-pandemic thoughts. One thing everyone agreed on was that Zoom was the new normal.

The Real Property, Probate and Trust Law Section’s ActionLine is a quarterly publication containing the latest news on Florida law of concern to RPPTL members and reporting on current Section activities.

 

At the beginning of the COVID-19 crisis on April 2, 2020, Governor DeSantis issued Executive Order 20-94, entitled “Mortgage Foreclosure and Eviction Relief” (“EO 20-94”).  EO 20-94 provided for a statewide freeze on mortgage foreclosure causes of action and residential evictions based upon the non-payment of rent. As the number of COVID-19 cases has increased in Florida, Governor DeSantis has issued four total extensions to Executive Order 20-94 with the latest one, EO 20-180, being signed on July 29, 2020, and extending the moratorium until September 1, 2020, at midnight.

Up until EO 20-180, there remained some unanswered questions around whether homeowner’s association and condominium association lien foreclosure actions were intended to be covered under the moratorium on mortgage foreclosures established by EO 20-94. Luckily, we’ve now received clarification with this order being specifically tied to the financial impact caused by the pandemic. While the moratorium will continue through August, the moratorium will only relate to “final action at the conclusion of a mortgage foreclosure proceeding under Florida law solely when the proceeding arises from non-payment of a mortgage by a single-family mortgage adversely affected by the COVID-19 emergency;” and to “final action at the conclusion of an eviction proceeding under Florida law solely when the proceeding arises from non-payment of rent by a residential tenant adversely affected by the COVID-19 emergency.”

One could argue that the limitation laid out in EO 20-180 that restricts the moratorium to single-family mortgages shows that was the intention of the previous executive orders as well. You can read Executive Order 20-180 in its entirety here: https://www.flgov.com/wp-content/uploads/orders/2020/EO_20-180.pdf.

For the latest news on COVID-19’s effects on community associations, contact our association law team for more information.

UPDATE: On August 31, 2020 Governor Ron DeSantis extended the moratorium on evictions and foreclosures until 12:01 am on October 1st.

Congress passed the Paycheck Protection Program Flexibility Act of 2020 on June 3, 2020, and President Trump signed it into law on June 5, 2020. The Act made some key revisions to the Paycheck Protection Program (PPP) as well as provided further clarity for issues surrounding the forgiveness portion of the loan. Below are some of the significant amendments that businesses who applied and received PPP loans should now review and take into consideration.

1. While the CARES Act originally granted borrowers only eight weeks to spend the PPP Loan money, this new Act now gives borrowers 24 weeks from when the loan proceeds are received to use the funds and still qualify for forgiveness.

2. The CARES Act originally mandated that at least 75% of the PPP loan funds had to be used towards employee payroll in order for the loan to be forgiven. This new Act has reduced that to 60%. This means that businesses can now use 40% of the loan towards non-payroll expenses and still be eligible for forgiveness. This change was perhaps the most significant as it will make many more businesses (especially those who have not yet been able to hire back employees) eligible for loan forgiveness. Keep in mind, this means that businesses will now have 24 weeks to spend the funds on qualifying rent, utilities and mortgage payments on up to 40% of their PPP loan.

3. For loans that are not forgiven, borrowers now have a minimum of five years to repay the loan – up from the previous two years.

4. Borrowers now have until December 31, 2020 to get their “full-time equivalent” (FTE) employee count back to what it was in the reference period in order to avoid a reduction in the amount of the loan being forgiven. The original deadline was June 30, 2020.

5. The Act allows for two new exceptions for borrowers to achieve full PPP loan forgiveness even if they don’t fully restore their workforce. Borrowers were already allowed to exclude employees who turned down good-faith offers to be rehired at the same hours and wages as before the pandemic. The PPPFA adds that an employer can be exempt from the loan forgiveness reduction related to workforce restaffing if they can document that they:

6. Under the new law, businesses can defer payment of the employer portion of the Social Security taxes until 2022 (50 percent to be paid in 2021 and the remainder in 2022), regardless of when the loan is forgiven.

7. Payments under the previous guidelines were set to be due after 6 months. Now payments are no longer due until the forgiveness amount is determined and remitted to the lender.

Although many of these changes eased some of the burdens borrowers felt, there are also some major issues that are awaiting clarification. These include:

ShuffieldLowman’s Corporate Law and Banking & Finance teams are continuing to monitor the changes to the Paycheck Protection Program, and how these new laws will affect Central Florida businesses, banks, and lenders. To speak to an attorney, fill out our contact form.

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Florida Statute Sections 718.1265 and 720.316 provide condominium associations and homeowners’ associations, respectively, the right to exercise certain emergency powers “in response to damage caused by an event for which a state of emergency is declared pursuant to s. 252.36 in …

the locale in which the condominium is located [for a condominium association]”.

the area encompassed by the association [for a homeowner’s association]”.

The range of emergency powers includes, but is not limited to:

  1. The right to conduct board or membership meetings by means other than in person gatherings;
  2. The right to determine that portions of the association’s property would be unavailable for entry or occupancy;
  3. The right to levy special assessments without a vote of the owners; and
  4. The right to borrow money and pledge association’s assets as collateral.

Clearly, these emergency powers would apply in the event of physical damage to association properties caused by an event that results in a state of emergency being declared within the State of Florida.  However, could these emergency powers be used when the “damage” to the association may be economic in nature (such as the loss of expected assessment revenue) or in the form of possible future personal injury or death to others (caused by the permitted use of the association’s property by infected individuals) and when the damage is caused by the consequences of a pandemic, such as COVID-19?

On March 27, 2020, the Florida Department of Business and Professional Regulation issued its emergency order 2020-04.  That order recognized that there were certain emergency powers that were available to associations, enumerated in both the condominium statute (in Section 718.1265) and the HOA statute (in Section 720.316), that could be used as a result of COVID-19.  Those powers expressly recognized by emergency order 2020-04 included the right to conduct board or membership meetings by means other than in person gatherings and the right to determine that portions of the association’s property would be unavailable for entry or occupancy.  However, the powers expressly recognized by emergency order 2020-04 did not include the right to levy special assessments without a vote of the owners or the right to borrow money and pledge association’s assets as collateral.

On May 20, 2020, the DBPR issued a new order, emergency order 2020-06.  The new order terminates most of the provisions in the original order, effective June 1, 2020.

The fact that the DBPR has issued this new order does not mean that the emergency powers of associations that were referenced in the earlier order cannot be used.  However, it means that, in the event a purported emergency power is used by an association which is subsequently challenged by an owner in the community, a court would need to decide whether that emergency power could be used.  The DBPR is no longer providing associations with a possible “safe harbor” to use in arguing that an association’s emergency powers can be used.

It should also be noted that the impact of the original DBPR emergency order, and the impact of the subsequent DBPR emergency order that terminates the original order, is subject to debate.  Many attorneys have questioned whether the DBPR had the requisite constitutional authority to issue a pronouncement that the needed  “emergency” that was required to trigger these “emergency powers” was in existence.  For those attorneys holding such a belief, the issuance of the original order was viewed as an ineffective act, as only the Florida legislature could have modified the provisions of these statutes to clarify whether the “emergency powers” could be triggered by a pandemic, and only a Florida court could have made a binding interpretation of whether the existing provisions of these statutes would allow for an association’s use of these “emergency powers” in the event of a pandemic.  These attorneys also believe neither of these DBPR emergency orders would have impacted the issue of whether community associations could utilize “emergency powers” due to the pandemic.

Any community association seeking to invoke emergency powers should seek assistance of its counsel before doing so.

For the latest news on COVID-19’s effects on community associations, contact our association law team for more information.