We are all experiencing difficult and unprecedented times with the COVID-19 pandemic. Our law firm has added this COVID-19 Employment Law page to this website OrlandoEmploymentLaw.com to provide convenient access to information about the new employment laws related to this current crisis so people do not need to search for and visit multiple sites to find the relevant information. COVID-19 has prompted several new or amended laws and new sets of governmental agency guidance. We are continuing to add to this page as the situation evolves, so check back for updates. The information provided on this website is not legal advice. Each particular circumstance is unique and may involve exceptions to the general principles described.
Paid Sick Leave and Expanded Family Leave Under The Families First Coronavirus Response Act (FFCRA)
The FFCRA requires certain employers to provide their employees with paid sick leave and expanded family and medical leave for specified reasons related to COVID-19. These provisions will apply from April 1, 2020 through December 31, 2020.
►FFCRA PAID LEAVE ENTITLEMENTS
Generally, employers covered under the FFCRA must provide employees:
Up to two weeks (80 hours, or a part-time employee’s two-week equivalent) of paid sick leave based on the higher of their regular rate of pay, or the applicable state or Federal minimum wage, paid at:
• 100% for qualifying reasons #1-3 below, up to $511 daily and $5,110 total;
• 2/3 for qualifying reasons #4 and 6 below, up to $200 daily and $2,000 total; and
• Up to 10 weeks more of paid sick leave and expanded family and medical leave paid at 2/3 for qualifying reason #5 below for up to $200 daily and $12,000 total.
A part-time employee is eligible for leave for the number of hours that the employee is normally scheduled to work over that period.
► FFCRA ELIGIBLE EMPLOYEES
In general, employees of private sector employers with fewer than 500 employees, and certain public sector employers, are eligible for up to two weeks of fully or partially paid sick leave for COVID-19 related reasons (see Reasons #1-5 listed below). Employees who have been employed for at least 30 days prior to their leave request may be eligible for up to an additional 10 weeks of partially paid expanded family and medical leave for reason #5 below.
► FFCRA QUALIFYING REASONS FOR LEAVE RELATED TO COVID-19
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.
► SOME EXCEPTIONS EXIST
It is important to note that there are some exceptions to the FFCRA provisions described above. For evaluation of how these new laws apply to your particular circumstances, consult an attorney.
The full U.S. Department of Labor webpage is available at this link: https://www.dol.gov/agencies/whd/pandemic
Unemployment Compensation Enhanced by FFCRA and CARES
Unemployment Insurance (UI) provides temporary benefits to workers who lost their jobs while they search for a new one. Currently, Florida’s law provides one of the lowest unemployment benefits in the country: a maximum of $275 per week for 12 weeks, yielding a maximum benefit amount of $3,300. However, new federal laws for this pandemic allocated an extra $1 billion for state UI offices like Florida’s to handle the new influx of claims and to expand their UI coverage to as many people as possible. The new federal CARES Act added an additional $600 a week in unemployment benefits to all eligible UI recipients, extended the payment period for an extra 13 weeks, and expanded eligibility to independent contractors and self-employed individuals.
► To be eligible, your past earnings must meet certain minimum thresholds and you must be unemployed for a reason that makes you eligible for benefits under Florida law. Fortunately, Florida’s usual one-week waiting period from job loss to eligibility has now been waived for this crisis.
► Eligibility has been extended to those who are quarantined by a medical professional or government agency due to COVID-19, those who are laid off or sent home without pay for an extended period by their employer due to COVID-19, and those who are caring for an immediate family member who is diagnosed with COVID-19.
► The amount of benefit per week also varies per individual. A rough estimate of Florida UI benefits would be one-half of a particular person’s weekly wage, up to a maximum of $275 per week (and with CARES, an additional $600, for a total of $875 per week, for a maximum of 25 weeks).
► Normally, you file your claim for benefits on the “Connect” system at Floridajobs.org. Unfortunately, in this crisis, the Connect website has suffered failures and significant technical problems. Now, due to the large number of technical problems with the website and severe backlogs that have attracted substantial media attention and public outcry, Florida has launched a new application portal for unemployment applications here: New Florida Unemployment Application Site. People are also reporting problems with the new portal as well. Florida has also now posted a paper application you can print and send in rather than filing online, though the state warns that paper applications may take longer to be reviewed and approved than online applications. You can find that paper application here: http://www.floridajobs.org/Reemployment-Assistance-Service-Center/reemployment-assistance/claimants/rapaperapplication. The information from the paper applications and the information from the new application portal will still need to be integrated into the Connect system, according to reports.
► An applicant for unemployment benefits has the right to appeal a denial of benefits. The deadline to appeal is short and will be stated on the denial notice. It is very important to adhere to the deadline for appeal stated on the notice of denial. The appeal hearings are conducted by telephone, but witnesses are put under oath and documents need to be submitted to the unemployment appeals officer and the employer prior to the appeal hearing. Our firm has experience in handling unemployment appeal hearings.
New EEOC Guidance for COVID-19
Because COVID-19 is a medical condition, the EEOC has issued guidance to explain what is allowable under the Americans with Disabilities Act and the Rehabilitation Act in relation to COVID-19. The EEOC Guidance contains specific do’s and don’ts for employers in dealing with COVID-19 issues in the workplace. Some highlights of the EEOC Guidance are the following:
- The ADA and Rehabilitation Act rules continue to apply, but they do not interfere with or prevent employers from following the guidelines and suggestions made by the CDC or state/local public health authorities about steps employers should take regarding COVID-19. Employers should remember that guidance from public health authorities is likely to change as the COVID-19 pandemic evolves. Therefore, employers should continue to follow the most current information on maintaining workplace safety.
- The EEOC has provided guidance (a publication entitled Pandemic Preparedness in the Workplace and the Americans With Disabilities Act [PDF version]), consistent with these workplace protections and rules, that can help employers implement strategies to navigate the impact of COVID-19 in the workplace. This pandemic publication, which was 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 has been updated as of March 19, 2020 to address examples and information regarding COVID-19; the new information added in 2020 appears in bold.
- How much information may an employer request from an employee who calls in sick, in order to protect the rest of its workforce during the COVID-19 pandemic?
- During a pandemic, ADA-covered employers may ask such employees if they are experiencing symptoms of the pandemic virus. For COVID-19, these include symptoms such as fever, chills, cough, shortness of breath, or sore throat. Employers must maintain all information about employee illness as a confidential medical record in compliance with the ADA.
- When may an ADA-covered employer take the body temperature of employees during the COVID-19 pandemic?
- Generally, measuring an employee’s body temperature is a medical examination. Because the CDC and state/local health authorities have acknowledged community spread of COVID-19 and issued attendant precautions, employers may measure employees’ body temperature. However, employers should be aware that some people with COVID-19 do not have a fever.
- Does the ADA allow employers to require employees to stay home if they have symptoms of the COVID-19?
- Yes. The CDC states that employees who become ill with symptoms of COVID-19 should leave the workplace. The ADA does not interfere with employers following this advice.
- When employees return to work, does the ADA allow employers to require doctors’ notes certifying their fitness for duty?
- Yes. Such inquiries are permitted under the ADA either because they would not be disability-related or, if the pandemic influenza were truly severe, they would be justified under the ADA standards for disability-related inquiries of employees. As a practical matter, however, doctors and other health care professionals may be too busy during and immediately after a pandemic outbreak to provide fitness-for-duty documentation. Therefore, new approaches may be necessary, such as reliance on local clinics to provide a form, a stamp, or an e-mail to certify that an individual does not have the pandemic virus.
- If an employer is hiring, may it screen applicants for symptoms of COVID-19?
- Yes. An employer may screen job applicants for symptoms of COVID-19 after making a conditional job offer, as long as it does so for all entering employees in the same type of job. This ADA rule applies whether or not the applicant has a disability.
- May an employer take an applicant’s temperature as part of a post-offer, pre-employment medical exam?
- Yes. Any medical exams are permitted after an employer has made a conditional offer of employment. However, employers should be aware that some people with COVID-19 do not have a fever.
- May an employer delay the start date of an applicant who has COVID-19 or symptoms associated with it?
- Yes. According to current CDC guidance, an individual who has COVID-19 or symptoms associated with it should not be in the workplace.
- May an employer withdraw a job offer when it needs the applicant to start immediately but the individual has COVID-19 or symptoms of it?
- Based on current CDC guidance, this individual cannot safely enter the workplace, and therefore the employer may withdraw the job offer.
The full EEOC COVID-19 webpage is accessible at this link: https://www.eeoc.gov/coronavirus/
Workplace Safety – OSHA and COVID-19
The Occupational Safety and Health Act is administered by the Occupational Safety and Health Administration of the U.S. Government, usually referred to as “OSHA”. OSHA regulates workplace safety and the law includes standards and requirements, both general and specific, that employers must comply with to ensure a safe workplace for employees. OSHA covers federal employees as well as private-sector employees in Florida. However, OSHA does not cover state and local government employees, as Florida (unlike many other states) does not have a state OSHA enacted plan.
There is no specific OSHA standard covering COVID-19. However, some OSHA requirements may apply to preventing occupational exposure to COVID-19. Among the most relevant are:
OSHA’s Personal Protective Equipment (PPE) standards (in general industry, 29 CFR 1910 Subpart I), which require using gloves, eye and face protection, and respiratory protection.
When respirators are necessary to protect workers, employers must implement a comprehensive respiratory protection program in accordance with the Respiratory Protection standard (29 CFR 1910.134).
OSHA has issued temporary guidance related to enforcement of respirator annual fit-testing requirements for healthcare.
The General Duty Clause, Section 5(a)(1) of the Occupational Safety and Health (OSH) Act of 1970, 29 USC 654(a)(1), which requires employers to furnish to each worker “employment and a place of employment, which are free from recognized hazards that are causing or are likely to cause death or serious physical harm.”
In addition to the health and safety regulations enforced by OSHA, the law includes protection for workers who “blow the whistle” about violations of OSHA. Employees who suffer retaliation for objecting to, making complaints about, and/or refusing to participate in a violation of OSHA may have legal claims under federal and Florida law.
OSHA has published a webpage with details, resources and helpful information for employers and employees at this link: https://www.osha.gov/SLTC/covid-19/