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Thursday, April 2, 2020

Labor & Employment Client Alert: Practical Guidance for Employers on Managing the COVID-19 Pandemic

As businesses continue to pause operations in light of city and state wide mandates, employers are faced with a number of issues regarding their employees. Flexibility in addressing COVID-19 related absences, permitting employees to use unaccrued paid time off ("PTO"), and permitting employees to either take leave or work from home in situations not covered by the newly enacted Families First Coronavirus Response Act ("the FFCRA") will encourage candor in reporting exposure to COVID-19 or exhibiting related symptoms and increase morale during a time of global uncertainty. Of course, operational needs will dictate whether these steps are feasible. As with any employment policy, deviations from standard policies to accommodate these special circumstances and/or any newly implemented policies should be applied consistently to all affected employees.

To help business owners navigate Florida and federal laws related to wages, paid time off, furloughs, layoffs, etc., members of our Labor & Employment Team have identified common scenarios and provided guidance and best practices for employers.

1. My employee has requested time off from work to care for COVID-19 related issues. Do I need to pay for their leave?

Guidance: Under the FFCRA, which was signed by the President on March 18, 2020 and is effective April 1, 2020 through December 31, 2020, employees with fewer than 500 employees will need to provide paid leave for certain COVID-19 related issues to eligible employees. The FFCRA permits employers of health care providers or emergency responders to exclude such employees from eligibility for paid leave. Employers should contact legal counsel to determine if their employees qualify as “health care providers” and/or “emergency responders.” Covered employers are also required to post the DOL FFCRA notice in a conspicuous place. The poster may be found here.

The FFCRA is not retroactive, and only applies to leave taken between April 1, 2020 and December 31, 2020.

Expanded family and medical leave: The FFCRA requires a covered employer to provide up to 12 weeks of job-protected leave for eligible employees who have worked for the employer for at least 30 days and who are unable to work or telework because of a need to care for a son or daughter under the age of 18 whose school or place of childcare is closed, or if the child care provider of the son/daughter is unavailable due to a public health emergency.

The first 10 days of leave may be unpaid unless the employee is also eligible for emergency paid sick leave, in which case an employee may be entitled to 80 hours of pay at their regular rate, and up to 10 weeks of leave paid at 2/3 their regular rate for childcare related issues due to COVID-19. Additionally, the employee may choose to use employer-provided PTO to cover this 10-day period.

After the first 10 days of leave, the employee is entitled to be paid at least 2/3 of their regular rate, capped at $200/day, for the remaining leave period (up to 10 weeks). This leave counts towards an employee's standard 12-week Family and Medical Leave Act ("FMLA") leave allotment. So, for example, if an employee previously took four weeks of FMLA leave in the past 12 months, the employee would only be able to use up to eight weeks of leave under this provision.
Covered employers providing eligible employees with expanded medical and family leave are required to adhere to the requirements of the FMLA, including restoring employees to their position, or a substantially similar position, at the end of their qualified leave period. However, employers with fewer than 25 employees may be exempt from the job restoration requirement if certain conditions are met.
Emergency Paid Sick Leave: In addition to the expanded FMLA provisions, the FFCRA also enacted the Emergency Paid Sick Leave Act. This provision requires employers with fewer than 500 employees to provide paid sick leave to any employee (regardless of how long they have worked for the employer) for the following reasons:

           a. the employee is subject to a federal, state, or local quarantine or isolation order related to COVID-19;

           b. the employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19;

           c. the employee is experiencing symptoms of COVID-19 and seeking medical diagnosis;

           d. the employee is caring for an individual who is subject to an order as described above, or has been advised by a health care provider as described above;

           e. the employee is caring for a son or daughter if the child's school or place of care has been closed or the child's care provider is unavailable due to COVID-19 precautions;

           f. because the employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services.

If an employee is taking leave due under (a), (b), or (c), above, employers must pay full-time employees their regular rate (but no more than $511/day) for up to two weeks (80 hours). For leave taken under (d), (e), or (f), the employee must be paid no less than 2/3 their regular rate or minimum wage, whichever is higher (but no more than $200/day), for the two-week period. 

For part-time employees, employers will need to pay the employee their regular rate for the average amount of hours that the employee works over a two-week period. There are additional guidelines for calculating the rate for part-time employees who work different hours week to week.

Employees are not permitted to "stack" their leave entitlement under the Emergency Paid Sick leave provision. Thus, if a full-time employee takes 80 hours of paid sick leave for her own quarantine, she is not entitled under the FFCRA to an additional 80 hours of paid sick leave to care for a family member who is under quarantine.

Employers with fewer than 50 employees may qualify for a small business exemption if providing child-care related emergency paid sick leave or expanded family and medical leave would jeopardize the viability of the employer's business. Employers will fewer than 50 employees should contact counsel to discuss whether this exemption may apply.   

Covered employers who deny an eligible employee's rights under the FFCRA, fail to pay employees appropriate, or terminate an employee's employment for requesting/taking leave under the FFCRA may be liable for violations under the Fair Labor Standards Act ("FLSA") and/or FMLA respectively.

2. I need to shut down my business for the next 30 days as ordered by my local government. Do I need to pay my employees?
Guidance: The short answer is "no." Qualified employees which fall into the categories listed above may be entitled to paid leave under the FFCRA. However, if the employee's inability to work is because the operations are shut down temporarily or permanently, then the FFCRA would not apply.

For non-exempt, hourly employees, the employer must make sure that all hours worked by the employee have been paid through the date of the closing.

Exempt employees must be paid their full week's salary for any week in which they work. Employers may choose to furlough exempt employees, and should do so in full-week increments. Furloughed employees should be advised that they are prohibited from performing any work during that workweek, including answering Emails, participating in calls, etc. Failure to pay a full work week's salary during any week in which any work is performed will jeopardize the exempt status and overtime exemption under the FLSA.

Employers also may have options which allow them to reduce an exempt employee's salary if the reduction is bona fide and prospective in nature and not below the threshold minimum of $684/week for professional, executive, and administrative exemptions under the FLSA.

In the event of a shutdown of operations, see the answer to question five, below.

3. Can I require my employees to work from home? Do I have to pay for their expenses?

Guidance: Employers may consider asking employees who can work from home to do so. For non-exempt employees, employers should ensure that they have effective measures of recording time worked by hourly employees. If a non-exempt employee incurs additional expenses for use of the internet, phone, etc., it may be wise for the employer to compensate for those expenses to make certain that the employee's hourly rate (including these expenses) does not fall below minimum wage. Similarly, requiring an exempt employee to pay for expenses may be considered an impermissible salary deduction.

For non-exempt, hourly workers, it is very important that the employer maintain records of hours worked, and reinforce policies related to recording and reporting hours, advanced overtime approval, breaks, etc. Employers who do not use a remote method of recording hours worked may want to implement a written policy which requires employees to report their time to their supervisor or human resources representative daily, and ask that each employee sign the policy.

Employers should consider implementing a temporary telecommuting policy that clearly delineates security procedures to protect confidential information, as well as stating that the employer acknowledges that the employee may not be able to perform all essential functions from home.

4. An employee advised that she was exposed to COVID-19. Do I need to tell other employees?

Guidance: The Center for Disease Control ("CDC") has published guidance (found here) that states that yes, employers should advise employees of their potential exposure, but only to the extent necessary. Employers must not reveal the employee's name unless directed to do so by the CDC.

5. I may have to lay off employees. Do I need to provide notice?

Guidance: Possibly. The federal Worker Adjustment and Retraining Notification ("WARN") Act may require certain covered employers with 100 or more full-time employees to notify employees of a mass layoff or plant closing. A "mass layoff" occurs when 50 or more employees experience an employment loss if they make up 33% of the employer's active workforce. An employment loss occurs not only when an employee is laid off permanently, but can also include a reduction in an employee's hours by 50% or more for at least six months. A "plant closing" occurs when a single site closes and results in an employment loss for 50 or more employees during any 30 day period. Notice is generally required at least 60 days in advance of a layoff or single-site closing, but there are exceptions, including where closings or layoffs are the result of unforeseeable business circumstances or natural disasters. In the event of a government ordered shutdown of operations with the requisite number of employees to trigger WARN, it appears highly likely that an employer would meet this unforeseeable business circumstance exception. Under such circumstances, the employer would be required to give as much notice as practicable.

These exceptions are very fact specific, so you will need to discuss these requirements with a qualified attorney. Florida does not have a mini-WARN Act, so employers must comply with the federal law if applicable.

The above is general guidance based on federal and Florida law as of April 1, 2020. For specific guidance on your business and employee needs related to wages, layoffs, and paid leave during the Coronavirus Pandemic, we recommend you contact your legal counsel.

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