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 can you protect business continuity if you get Covid-19 or someone else in your organization gets sick? From a legal prospective, review your governing documents, do you have a board structure in place, are you meeting regularly, who has authority to make day to day decisions made in the ordinary course of business in your absence? You need one or more key people who will also know the ropes and can work in your absence understanding both the big picture and processing management skills. Granting them management authority before illness happens will help them understand how to serve in this role and the work force will recognize their authority. Identify key staff and make sure they have trained someone in their department on taking on their role in the event of illness or absence.

On Monday, June 15, the Supreme Court ruled in a landmark decision that protections under Title VII of the Civil Rights Act of 1964 (“Title VII”) extend to protect gay and transgender employees from discrimination. The decision—Bostock v. Clayton County, Georgia—is a consolidation of three cases in which employees were terminated by their employers on the basis of their sexual orientation or transgender stereotyping. Title VII prohibits employment discrimination based on race, color, religion, sex and national origin. However, what constitutes discrimination on the basis of sex has been strenuously debated in courts nationwide, with lower courts regularly holding that Title VII’s protections did not extend to individuals who experienced adverse employment action merely because they were gay or transgender. Courts are now faced with a new Title VII frontier.

In the opinion written by Justice Gorsuch, the Supreme Court held that Title VII is violated by firing an individual for being homosexual or transgender. Justice Gorsuch, who is widely known for his textualist approach in statutory interpretation, wrote: “when an employer fires a person for traits or actions that the employer would not have questioned in members of a different sex, then sex plays a necessary and undisguisable role in the decision, which is exactly what Title VII forbids.” He further wrote that it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex. Notably, Title VII maintains a statutory “but for” cause standard. Thus, if a plaintiff can show that but for their gender identity or sexual orientation they would not have been fired, they have a valid claim under the extension of the statute.

The Court reached its decision by a margin of 6-3, with Justice Gorsuch and Chief Justice Roberts, two conservative members, siding with the four liberal members of the Court. The two dissenting opinions, written by Justice Alito and Justice Kavanaugh, argued that the textual reasoning was misapplied and that drafters of Title VII did not contemplate discrimination based on sexual orientation or gender identity, making the extension of Title VII to cover these individuals a job better suited for the legislation.

Prior to this decision, half of the States—including Florida—did not have laws that prohibit discrimination based on sexual orientation and gender identity. However, Orlando is one of the few municipalities with ordinances that already made it unlawful for an employer to discriminate against an employer for sexual orientation and gender identity. See Section 57.14 of the City Code of Ordinances. Thus, Orlando employers could already face claims of discrimination based on sexual orientation and gender identity under these ordinances. With the Supreme Court’s decision, federal law has caught up to Orlando’s ordinances and Title VII expanded federal protection to these employees as well. Although this decision is narrowly tailored, making it unclear as to how far Title VII will extend in other contexts, many employees across the country are now protected from discrimination based on their gender identity and sexual orientation at the hands of their employers as a result of this decision.

The impact of the Bostock decision has broad implications for employers. Although many Florida employers already have policies in place that prohibit discrimination on the basis of sexual orientation or gender identity, there is no longer any doubt that private employers with more than 15 employees may face legal liability under Title VII if an employee is subjected to harassment or discrimination due to the employee’s sexual orientation or gender identity. Employers should revise and expand their policies, handbooks, and training programs to incorporate specific provisions prohibiting discrimination and harassment against gay and transgender employees.

If you would like to confirm your organization’s policies comply with Title VII’s newly expanded protections or would like assistance in forming and implementing new Title VII training programs, please contact Shuffield, Lowman & Wilson, P.A., for your labor & employment law needs.

Since the FFCRA’s enactment on March 18, 2020, the Department of Labor (“DOL”) has made good on its promise to release guidance on the implementation the new Emergency Family and Medical Leave Expansion Act (“E-FMLA”) and The Emergency Paid Sick Leave Act (“E-PSLA”) on a “rolling” basis.

The DOL has continually released guidance in the form of its Frequently Asked Questions (FAQs) webpage, with the most recent most recent version found here, as well as facts sheets and a new required workplace poster. More substantially, the DOL published its Temporary Regulations under the FFCRA in the Federal Register on April 6, 2020.

This update provides highlights and clarifications on issues employers should know moving forward.

 

The DOL Lifted its Stay on Enforcement – The FFCRA’s paid leave provisions became effective April 1, 2020. However, the DOL had a limited stay of enforcement until April 17, 2020. The DOL is now enforcing the FFCRA. So, employers need to immediately ensure they have FFCRA policies in place and are operating in compliance with the FFCRA’s provisions. Remember, the DOL will retroactively enforce violations back to the effective date of April 1, 2020, if employers have not since remedied the violations.

Small Business Exemption—the DOL has provided further information regarding the small business exemption to the FFCRA leave provisions. An employer (including a religious or nonprofit organization), with fewer than 50 employees is exempt from providing: (a) paid sick leave due to school or place of care closures or child care provider unavailability for COVID-19 related reasons and (b) expanded family and medical leave due to school or place of care closures or child care provider unavailability for COVID-19 related reasons, when doing so would jeopardize the viability of the small business as a going concern.

A small business may claim this exemption if an authorized officer of the business has determined that:

  1. The provision of paid sick leave or expanded family and medical leave would result in the small business’s expenses and financial obligations exceeding available business revenues and cause the small business to cease operating at minimal capacity;
  2. The absence of the employee or employees requesting paid sick leave or expanded family and medical leave would entail substantial risk to the financial health or operation capabilities of the small business because their specialized skills, knowledge of the business, or responsibilities; or
  3. There are not sufficient workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the labor or services provided by the employee or employees requesting paid sick leave or expanded family and medical leave, and these labor or services are needed for the small business to operate at a minimal capacity.

Based on the DOL’s explanation of the small business exemption, it appears an employer could grant leave to some employees but deny leave to others depending on the financial impact. Further, the DOL requires that the small businesses claiming this exemption must document the determination that it is exempt. However, there is no requirement that the employer must send this documentation to the DOL. No specified form of documentation is explained or required, just as long as the documentation establishes one of the three requisite bases for exemption listed above.

“Substantially Similar Condition”—Of the six qualifying reasons for an employee to be eligible for E-PSLA benefits, the sixth defined reason is: “The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of Treasury and the Secretary of Labor.”

However, the U.S. Department of Health and Human Services (“HHS”) has not yet identified any “substantially similar condition” that would allow an employee to take paid sick leave. This appears to be a catchall provision that provides flexibility for defining additional reasons for leave in the future. Nonetheless, the DOL states it will issue guidance explaining when an employee may take paid sick leave because of a “substantially similar condition.”

Quarantine and Isolation Clarified—For the purposes of the FFCRA, a Federal, State, or local quarantine or isolation order includes quarantine or isolation orders, as well as shelter-in-place or stay-at-home orders, issued by any Federal, State, or local government authority that causes an employee to be unable to work (or telework). However, for such an order to qualify the employee for leave, being subject to the order must be the reason the employee is unable to perform work (or telework) that the employer has available for the employee. As result, an employee cannot take paid leave under the E-PSLA due to a quarantine or isolation order if the employer does not have work for the employee to perform due to the order or for other reasons.

Concurrent Usage of FFCRA Leave and Existing Employer Leave Policies—The DOL clarified that paid sick leave under the E-PSLA is in addition to any form of paid or unpaid leave already provided by an employer’s existing leave policy. An employer may not require the employer’s provided paid leave to cover the same hours as paid sick leave under the E-PSLA.

However, an employer may require that any paid leave available to an employee under the employer’s existing policies run concurrently with the paid leave under the E-FMLA to allow an employee to care his or her child because their school or place of care closed due to a COVID-19 related reason. In this situation, the employer must pay the employee’s full pay during the leave until the employee exhausts his or her available paid leave under the employer’s policy.

Additionally, upon agreement between the employer and employee, and subject to federal or state law, paid leave provided by an employer may be used to supplement the two-thirds pay the employee may receive under the E-FMLA so that the employee may receive the full amount of the employee’s normal compensation.

Lastly, an employee may choose—but an employer cannot require the employee—to take paid sick leave under the E-PSLA or paid leave under the employer’s existing leave policy for the first two weeks of unpaid E-FMLA leave, but not both.

12-Workweek Standard applies for FMLA and E-FMLA—An eligible employee is entitled to paid sick leave under the E-PSLA regardless of the amount of leave taken by the employee under the FMLA. However, if the employer was covered by FMLA prior to April 1, 2020, the employee’s eligibility for E-FMLA is contingent upon the employees’ FMLA leave usage during the employer’s designated 12-month period. An employee may take a total of 12 workweeks for both FMLA and E-FMLA during a 12-month period. If an employee has taken some—but not all—of their 12 workweeks under FMLA during the 12-month period, then the remaining leave available can be used pursuant to E-FMLA leave.

For example, if an employee took two weeks of FMLA leave in January 2020 to recover from surgery, the employee would have 10 weeks of FMLA leave remaining. Because E-FMLA is just an expanded type of FMLA, the employee would only be entitled to take 10 weeks of E-FMLA if they are eligible. If the employer has only become covered by FMLA on or after April 1, 2020, this analysis does not apply.

Conditions for Intermittent Leave—The DOL has clarified that although intermittent leave is not specifically permitted under the FFCRA, employers may allow it by policy. But conditions apply.

Unless the employee is teleworking, once the employee begins taking paid leave under the E-PSLA, the employee must continue to take paid sick leave each day until (1) the full amount of paid sick leave provided by the E-PSLA is used or (2) the employee no longer has a qualifying reason for taking paid sick leave. This is because an employee who qualifies for E-PSLA is a vector for coronavirus and the goal of E-PSLA is to prevent the spread of the virus.

However, if the employee and employer agree, a teleworking employee can receive paid sick leave under the E-PSLA or E-FMLA intermittently. Intermittent leave can be taken in any increment provided the employer and employee can agree. For instance, an employee could work from 8:00 AM to 12:00 PM, take leave from 12:00 PM to 2:00 PM, then return to teleworking. The employee could then request two hours-worth of leave.

In fact, the DOL encourages employers and employees to collaborate to achieve flexibility and meet mutual needs and is supportive of such voluntary arrangements that combine telework and intermittent leave. However, it is important to remember if an employee no longer has a qualifying reason for taking paid sick leave under E-PSLA or E-FMLA before the paid sick leave is exhausted, the employee may take any remaining paid sick leave later if another qualifying reason occurs until December 31, 2020.

Overtime—An employee may be entitled to FFCRA paid leave for more than 40 hours in a workweek, if the employee would have normally been scheduled for more than 40 hours per workweek. However, there is not a requirement for payment for E-PSLA hours at a premium rate, or that the employee receive more than 80 hours total of paid leave under the E-PSLA.

**ShuffieldLowman anticipates changes to develop as both federal and Florida government responds to this unprecedented health emergency. We will provide updates as we are able in this developing legal situation and other COVID-19 related employment legislation that may be enacted in the coming weeks and months.

***Disclaimer: The information contained herein provides an overview of developing and ongoing legislation and does not constitute legal advice for any particular situation.

Following the enactment of the FFCRA on March 18, 2020, employers and employees alike had many questions regarding the Act’s implementation and are left to move forward with uncertainty. However, the Department of Labor (“DOL”) has provided new questions and answers to provide much needed clarity to all those struggling to ensure compliance with the new Emergency Family and Medical Leave Expansion Act (“E-FMLA”) and The Emergency Paid Sick Leave Act (“E-PSLA”).

Over the past week, the DOL has issued written guidance in the form of a published set of FAQ’s on its website found here, as well as facts sheets and a new required workplace poster. The DOL has already updated and expanded its written guidance several times, and readily admits that such guidance will continue to be issued on a rolling basis. Also, the DOL has indicated it intends to promulgate further regulations on an unspecified date in April 2020.

Interpretation and implementation of the FFCRA is changing quickly. But to date this is what we know based on the guidance provided by the DOL:

New Effective Date

A considerable curveball, the DOL announced that the FFCRA is going to become effective a day early on April 1, 2020.

 

Benefits Will Not Apply Retroactively

The DOL clarified that FFCRA benefits are not retroactive. As a result, any paid leave given to employees before the effective date of the FFCRA (April 1, 2020), which would have otherwise qualified for either E-FMLA and E-PSLA benefits, will not be counted to towards the FFCRA’s leave requirement. However, employees are entitled to their full entitled of FFCRA leave on April 1, 2020, and beyond.

 

Workplace Poster 

The DOL has issued the notice poster employers must use to educate employees on the new leave opportunities and requirements. Employers can satisfy their notice obligations under the FFCRA by: (1) posting the notice in a conspicuous location in the workplace; (2) directly emailing or mailing the requisite notice to each individual employee; and (3) posting the notice on an employee information internal or external website.

Employers should have the poster up by April 1. The DOL recognized employers are still grappling with the FFRCA going into effect and plans to give a 30-day grace period for enforcement. Employers are not required to issue notices to recently laid-off employees. However, notice should still be provided to furloughed employees, even though they are not entitled to paid leave under the law. Copies of the required notice and the DOL’s guidance concerning notice are available here and here.

 

Small Business Exemptions

The most needed point of clarity pertains to the possibility of small business exemptions from the E-FMLA and E-PSLA. Under the FFCRA, the Secretary of Labor reserved the authority to issue regulations exempting small businesses with fewer than 50 employees when the imposition of the Act’s requirements would jeopardize the viability of the business as a going concern. Unfortunately, the DOL has not issued any further elaboration on the implementation or requirements of these exemption provisions. The DOL simply advised small businesses should “document” why the E-FMLA and E-PSLA provisions of the FFCRA “jeopardize the viability” of your business. However, the DOL promised that forthcoming regulations will address this is in more detail.

 

Large Employers (500 or more employee)

The DOL clarified that the number of employees should be calculated “at the time your employee’s leave is to be taken.” This could greatly impact the 500-employee threshold outlined in the FFCRA. Based on this language, the DOL is requiring employers to determine whether it has 500 employees at the time any individual employee takes leave under the FFCRA. As a result, the 500-employee threshold to qualify as a large employer is a moving target. For businesses hovering around 500 employees, this could have substantial implications for businesses contemplating layoffs before and after the April 1 effective date. If the contemplated layoffs would bring the overall number of employees under 500, then FFRCA coverage would be triggered.

Moreover, the DOL also issued detailed guidance on how to calculate the number of employees when multiple entities exist under the same corporate family, and in situations where multiple entities may constitute “joint employers” or “integrated employers.”

 

Documentation and Certification Requirements

The DOL clarified that employers must require employees to provide appropriate documentation and written notice supporting the reason for their leave in order for the employer to claim a payroll tax credit for FFCRA leave payments. The appropriate notice should include:

Documentation of the reason for leave is also necessary. This includes the source of any quarantine or isolation order, the name of the health care providers who advised the employee to self-quarantine, or notice of a school disclosure or lack of child care. Importantly, unlike traditional FMLA leave, no signed third-party certification is required for FFCRA paid leave.

Employers should retain all documentation and create written policies advising their employees of the documentation required to receive benefits. Employers who grant their employees paid leave under the FFCRA without keeping such documentation will not be eligible for a payroll tax credit.

 

Layoffs, Worksite Closures, and Furloughs

The DOL explained that if an employer closed its worksite before or after the April 1st effective date, but prior to the employee requesting leave under the FFCRA, the employee is not entitled to leave under the FFCRA. Additionally, if an employer closes its worksite during a time when an employee is on leave pursuant to the FFCRA, employee is no longer eligible for FFCRA benefits.

In the case of a furlough, an employee will not be entitled to leave under the FFCRA, even if the employer remains in operation. Further, if an employer reduces an employee’s hours, the employee may use leave under the FFCRA to supplement for the hours the employee is no longer working.

 

Existing Employer Leave Policies and FFCRA Paid Leave

The DOL clarifies that E-PSLA benefits are not to be denied or reduced based on existing accrued leave provided by the employer. As of April 1st, employers may permit—but may not require—employees to choose between their existing accrued leave and FFCRA’s E-PSLA or E-FMLA. However, employers may permit—but may not require—employees to supplement any partially paid leave under the FFCRA with existing accrued paid leave in order to receive their full compensation. Ultimately, an employer cannot require an employee to use existing accrued paid leave if the employee prefers not to.

In sum, the DOL has provided beneficial guidance for the interpretation and implementation of the FFCRA. However, we are still far from clarity on each detail. And for employers trying to ensure compliance with the FFCRA, the devil is in the details. We anticipate this is still going to be an evolving area of law in the upcoming months. The employment law team at ShuffieldLowman is available to advise employers in these uncertain times based on the current legal updates available. For more information on COVID-19 legal updates, visit our resources page HERE.

 

View our other FFCRA Blogs Here:

Families First Coronavirus Response Act: Emergency Family and Medical Leave Expansion Act

FFCRA Emergency Unemployment Insurance Stabilization Act

FFCRA: Emergency Paid Sick Leave Act

**ShuffieldLowman anticipates changes to develop as both federal and Florida government responds to this unprecedented health emergency. We will provide updates as we are able in this developing legal situation and other COVID-19 related employment legislation that may be enacted in the coming weeks and months.

***Disclaimer: The information contained herein provides an overview of developing and ongoing legislation and does not constitute legal advice for any particular situation.

Authors: Dillon McColgan & Clay Roesch

 

Non-competes, or non-competition agreements, are becoming more and more common. They can protect an employer from having a valuable employee that they have invested in, trained and developed from joining a direct competitor and working against them. If you have been asked by your employer to sign a non-competition agreement or if you, as the employer, are preparing one for your employee to sign, ShuffieldLowman can assist. Watch as ShuffieldLowman labor & employment law attorney, Keith Hesse, provides some tips for enforcing or defeating a non-compete.