The last thing a business owner needs right now is a labor dispute with an employee.
The current situation makes that a possibility.
Things are starting to return to normal. Businesses are reopening. Millions of companies have received Payroll Protection Program loans and need to use the majority of those funds quickly for payroll in order to obtain loan forgiveness.
But what if an employee does not want to return to work due to fear of contracting the Coronavirus?
In last Friday’s Tampa Bay Business Journal, LSA attorneys, Alissa Kranz and Jeff Lieser analyzed three scenarios that employers may face in the weeks ahead.
In addition to Coronavirus concerns, some employees may be satisfied with their unemployment benefits. However, they may not realize that, generally, refusing to return to work can result in such benefits being cut off.
Employers should consider counseling their employees accordingly and following the guidance in today’s article, including: documenting communications with employees, understanding current leave laws, accommodating employees with disabilities when it would not result in an undue burden on the company, and following federal, state, and local recommendations and guidelines on how to reduce exposure to COVID-19.
Two senior women are using their phone to order and pay for their coffee at a cafe. The waiter is using a digital tablet.
On April 29th, Governor DeSantis signed Executive Order 20-112, which puts “Phase 1” of his “Safe. Smart. Step-by-Step. Plan for Florida’s Recovery” into effect on May 4th.
“Phase 1” reopens certain businesses that were previously deemed nonessential in all counties except Miami-Dade, Broward, and Palm Beach. Some highlights of the Executive Order include:
The continuation of distance learning in schools;
The prohibition of visiting senior living facilities;
Restaurants may begin dine-in operation, but (i) with outdoor seating and tables; spaced six feet apart, and (ii) with indoor seating at 25% of occupational capacity
Brick and mortar establishments may operate at 25% of occupational capacity;
Vulnerable individuals should avoid close contact with people outside of the home;
When in public, all individuals should maximize personal distance from others;
Socializing in groups of more than 10 people in circumstances that do not readily allow for physical distancing should be avoided;
Face masks are recommended for those in face-to-fact interactions and where social distancing is not possible; and
Museums and libraries may open and operate at 25% of occupational capacity, provided local government allows for it and interactive functions or exhibits remain closed.
Throughout the state, healthcare offices, including surgical centers, office surgery centers, dental offices, orthodontic offices, and endodontic offices, may now fully reopen. Healthcare providers may also offer previously banned elective services, so long as, among other requirements, certain measures are in place resource-wise that allow the provider to immediately convert care beds for treatment of COVID-19 patients in a surge capacity situation.
There are no changes to the previous Stay-At-Home Order for bars, gyms, and personal services.
Those violating the Executive Order may be subject to criminal penalties.
In an effort to help families and individuals struggling with the impact of COVID-19, Congress passed the Families First Coronavirus Response Act (“FFCRA”), which went into effect on April 1, 2020, and will remain in effect until December 31, 2020. The FFCRA allows for paid sick leave through the Emergency Paid Sick Leave Act (“EPSLA”) and paid emergency family leave through the Emergency Family and Medical Leave Expansion Act (“EFMLEA”), and applies to substantially all for-profit and non-profit employers that employ between one and four hundred and ninety-nine employees. Thus, it is extremely important for business owners to be aware of what the FFCRA requires, so that they can ensure that they are following the law. Below, we discuss some of the key provisions of the EPSLA and EFMLEA to help business owners come up to speed, though, please keep in mind, that this discussion is not comprehensive and will not address each and every situation or decision an employer may face. Additionally, nothing in the EPSLA or EFMLEA diminishes the rights or benefits that an employee is entitled to under any other Federal, State, or local law; collective bargaining agreement; or existing employer policy, so businessowners will need to take care to consider the impact of those.
If you would like to further discuss your specific situation or the process your business should put in place to handle requests for leave, please give us a call. We would be happy to help!
What Does the FFCRA Generally Require in Terms of Leave?
EPSLA
Requires employers to provide full-time employees with 80 hours of paid sick time, and part-time employees with a number of paid sick time hours equal to the average number of hours they worked over a two-week period if the employee is unable to work or telework because:
The employee is subject to a federal, state, or local quarantine or isolation order related to COVID-19 (Reason 1);
The employee has been advised by a health care provider to self-quarantine because of COVID-19 (Reason 2);
The employee is experiencing symptoms of COVID-19 and is seeking a medical diagnosis (Reason 3);
The employee is caring for an individual subject to a quarantine or isolation order by a governmental entity, or who has been advised by a healthcare provider to quarantine (Reason 4);
The employee is caring for a son or daughter whose school or place of care is closed, or childcare provider is unavailable, due to COVID-19 precautions (Reason 5); or
The employee is experiencing substantially similar conditions as specified by the Secretary of Health and Human Services, in consultation with the Secretaries of Labor and Treasury.
Please note, that, in order to qualify as unable to work, an employer must have work for their employee to do. If an employer closes due to a lack of business caused by COVID-19, an employee is not entitled to seek leave—the employer has no work for their employee.
EFMLEA
Requires employers to provide 12 weeks of job-protected leave, 10 of which are paid, to workers that are unable to work or telework because they need to care for children due to coronavirus-related school, daycare closures, or caregiver unavailability.
“Children” means those under 18 years old and also is interpreted to include children above 18 years old that are incapable of self-care because of a mental or physical disability.
It is not specified in the Regulations, however, based on its reference to the IRS’s FAQ document, if the child in question is over 14 years of age, but under 18 years of age, “special circumstances” must exist that require the child to be cared for during daylight hours.
Employers should be careful when evaluating “special circumstances” to ensure that policies or approaches taken to evaluate circumstances are not discriminatory.
What Employers are Subject to the FFCRA?
EPSLA
Employers that employ between 1 and 499 employees.
EFMLEA
Employers that employ between 1 and 499 employees.
What Employees are Covered?
EPSLA
All employees, regardless of how long the employee in question has worked for the employer, except employers may exclude healthcare or emergency responders from taking leave.
EFMLEA
Employees who have been on the payroll for 30 calendar days, except employers may exclude healthcare or emergency responders from leave. Leave is also provided to certain laid off and re-hired employees.
Are there Any Exemptions for Small Businesses?
EPSLA
Employers with less than 50 employees can be exempt from providing leave only when leave is requested to provide childcare for a son or daughter/child (Reason 5), and only if granting such leave would jeopardize the viability of their business as a going concern.
This occurs when:
(1) Such leave would cause the employer’s expenses and financial obligations to exceed available revenue, and cause the small employer to cease operating at a minimal capacity; (2) The absence of the employee or employees requesting 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 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 services are needed to operate at a minimal capacity.
The exemption is not automatic. It is extremely important to document all facts and circumstances related to the denial of a request for leave. Employers must keep any requests and the reasons for denial for four years.
EFMLEA
Employers with less than 50 employees can be exempt if leave payments would jeopardize the viability of their business as a going concern.
This occurs when:
(1) Such leave would cause the employer’s expenses and financial obligations to exceed available revenue, and cause the small employer to cease operating at a minimal capacity; (2) The absence of the employee or employees requesting 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 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 services are needed to operate at a minimal capacity.
The exemption is not automatic. It is extremely important to document all facts and circumstances related to the denial of a request for leave. Employers must keep any requests and the reasons for denial for four years.
How Much Pay are Employees Entitled to Under the FFCRA?
EPSLA
Limited to $511 per day ($5,110 in the aggregate) when leave is taken for reasons 1 through 3, and 2/3 the regular rate of pay up to $200 per day ($2,000 in the aggregate) when leave is taken for reasons 4 through 6.
This leave time automatically expires December 31, 2020, and cannot be carried over to the following year and an employer does not have to pay a separated employee for unused leave.
Employers may not require employees to use their existing paid leave before they may use the EPSLA leave.
Employers cannot require employees to find a replacement to cover a shift when taking leave.
Employers may terminate an employee’s paid sick time beginning with the employee’s next-scheduled work shift after the employee’s emergency paid sick time ceases.
EFMLEA
Up to 12 weeks of job-protected family and medical leave for the number of hours that would normally be scheduled, 10 of which weeks must be paid, generally at 2/3 the employees’ normal rate up to $200 per day or $10,000 total. The first 10 days (or 2 weeks) of leave are unpaid, but an employee may substitute paid sick leave under the EPSLA or paid leave under the employer’s preexisting policies for these two weeks of unpaid leave.
An eligible employee may elect to use, or an employer may require that an employee use this leave concurrently with any leave offered under the employer’s policies that would be available for the employee to take to care for his or her child, such as vacation or personal leave or paid time off.
This leave time automatically expires December 31, 2020, and cannot be carried over to the following year.
What if an Employee Qualifies for Leave Under the EPSLA and the EMFLEA?
EPSLA
Employees may use EPSLA payments to fill the 10-day unpaid leave period in the EFMLEA to ensure that workers taking EFMLEA leave receive a full 12 weeks’ pay.
EFMLEA
Employees may use EPSLA payments to fill the 10-day unpaid leave period in the EFMLEA to ensure that workers taking EFMLEA leave receive a full 12 weeks’ pay.
What Benefits are Available to Employers to Offset the Cost of Paying Employees During Leave?
EPSLA
The FFCRA provides employers with a refundable tax credit against the employer’s share of Social Security and Medicare Tax (FICA Tax) or excise tax for employers subject to the Railroad Retirement Tax Act (RRTA Tax), as applicable. If the FICA Tax or RRTA Tax owed is insufficient to cover total qualified wages, then the excess qualified wages shall be refunded to the employer. Employers may elect not to have the above provisions apply. The Act provides similar credits against self-employment tax for self-employed individuals.
Please discuss your specific tax questions and accounting practices under the FFCRA with your tax professional.
Information on the tax credits is also available here.
EFMLEA
The FFCRA provides employers with a refundable tax credit against the employer’s share of Social Security and Medicare Tax (FICA Tax) or excise tax for employers subject to the Railroad Retirement Tax Act (RRTA Tax), as applicable. If the FICA Tax or RRTA Tax owed is insufficient to cover total qualified wages, then the excess qualified wages shall be refunded to the employer. Employers may elect not to have the above provisions apply. The Act provides similar credits against self-employment tax for self-employed individuals.
Please discuss your specific tax questions and accounting practices under the FFCRA with your tax professional.
Information on the tax credits is also available here.
What Happens to an Employee’s Job After Leave?
EPSLA
Employers with 25 or more employees: An employee is entitled to be restored to the same or an equivalent position upon return, unless the employee would have been impacted by employment actions, like layoffs, that would have occurred whether or not leave was taken. The burden will be on the employer to demonstrate this.
Employers with fewer than 25 employees: The employer does not have to restore employment and is not subject to the above if the following conditions are met:
(1) The employee took leave to care for their child/son or daughter whose school or childcare was unavailable; (2) The position no longer exists due to economic or operating conditions that (i) affect employment and (ii) are caused by public health emergency 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 reasonable efforts fail, the employer makes reasonable efforts for a period of time to contact the employee if an equivalent position comes available. This period is one year.
EFMLEA
Employers with 25 or more employees: An employee is entitled to be restored to the same or an equivalent position upon return, unless the employee would have been impacted by employment actions, like layoffs, that would have occurred whether or not leave was taken. The burden will be on the employer to demonstrate this.
Employers with fewer than 25 employees: The employer does not have to restore employment and is not subject to the above if the following conditions are met:
(1) The employee took leave to care for their child/son or daughter whose school or childcare was unavailable; (2) The position no longer exists due to economic or operating conditions that (i) affect employment and (ii) are caused by public health emergency 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 reasonable efforts fail, the employer makes reasonable efforts for a period of time to contact the employee if an equivalent position comes available. This period is one year.
What Kind of Notices Must an Employer Provide of Leave Rights?
EPSLA
Employers need to post a notice in a conspicuous place where employee notices are usually posted that inform employees of their rights.
The model notice created by the Department of Labor is located here.
Employers may also send the notice to employees via email but are not required to. We recommend doing that, however, for teleworking employees to avoid any question during a potential enforcement action that an employer stood in the way with the employees’ rights.
EFMLEA
Employers need to post a notice in a conspicuous place where employee notices are usually posted that inform employees of their rights.
The model notice created by the Department of Labor is located here.
Employers may also send the notice to employees via email but are not required to. We recommend doing that, however, for teleworking employees to avoid any question during a potential enforcement action that an employer stood in the way with the employees’ rights.
What Kind of Notice Must an Employee Provide if they Wish to Take Leave?
EPSLA
An employer can require employees to provide notice and sufficient information for an employer to determine if leave is covered by the FFCRA as soon as practicable after the first workday or portion of a workday for which an employee receives paid sick leave.
Requests for documentation cannot go beyond what the FFCRA allows. All employees are required to provide a signed statement containing the following:
(1) The employee’s name; (2) The date(s) for which leave is requested; (3) The COVID-19 qualifying reason for leave; and (4) A statement representing that the employee is unable to work or telework because of the COVID-19 qualifying reason.
Employees also must provide additional documentation, depending on the COVID-19 qualifying reason:
If the request is for Reason 1, an employee must provide the name of the entity that issued the quarantine or isolation order to which the employee is subject.
If the request is for Reason 2, an employee must provide the name of the healthcare provider that advised self-quarantine.
If the request is for Reason 4, an employee must provide either the government entity that issued the quarantine or isolation or to which the individual is subject or the name of the healthcare provider who advised the individual to self-quarantine, depending on the precise reason for quarantine.
If the request is for Reason 5, an employer must provide:
(1) The name and age of the child being cared for; (2) The name of the school, place of care, or childcare provider that closed or became unavailable due to COVID-19 reasons; (3) A statement representing that no other suitable person is available to care for the child during the period of requested leave. If an employee fails to give proper notice, the employer should give him or her notice of the failure and an opportunity to provide the required documentation prior to denying the request for leave; and (4) If the child in question is older than 14 years of age, an explanation of “special circumstances” requiring the employee to care for that child during daylight hours.
If an employee fails to give proper notice, the employer should give him or her notice of the failure and an opportunity to provide the required documentation prior to denying the request for leave.
EFMLA
An employer can require employees to provide notice and sufficient information for an employer to determine if leave is covered by the FFCRA as soon as practicable after the first workday or portion of a workday for which an employee receives paid sick leave.
Requests for documentation cannot go beyond what the FFCRA allows. Employees must provide a signed statement containing the following:
(1) The employee’s name; (2) The date(s) for which leave is requested; (3) The COVID-19 qualifying reason for leave; and (4) A statement representing that the employee is unable to work or telework because of the COVID-19 qualifying reason.
Additionally, all employees are required to provide:
(1) The name of the child being cared for; (2) The name of the school, place of care, or childcare 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. (4) If the child in question is older than 14 years of age, an explanation of “special circumstances” requiring the employee to care for that child during daylight hours.
If an employee fails to give proper notice, the employer should give him or her notice of the failure and an opportunity to provide the required documentation prior to denying the request for leave.
What are the Penalties if an Employer Violates the FFCRA?
EPSLA
Employers that violate the requirements of the EPSLA or who discharge, discipline, or discriminate against employees that seek sick leave, take sick leave, or initiate a proceeding related to the same, will be held liable for damages equal to the federal minimum wage for each hour denied, an additional equal amount as liquidated damages, and an amount for costs and reasonable attorneys’ fees. If there are repeated or willful violations, employers can also be subject to a civil fine for each violation in addition to the forgoing.
EFMLEA
Employers that violate the requirements of EFMLEA or who discharge, discipline, or discriminate against employees that seek leave, take leave, or initiate a proceeding related to the same, can receive the same penalties available under the FMLA. These may include back pay, lost front pay, liquidated damages, emotional distress and punitive damages, and attorneys’ fees and costs.
How is the FFCRA Enforced?
EPSLA
An employee can initiate enforcement in federal or state courts with competent jurisdiction.
Complaints for violations of the EPSLA and/or the EFMLEA can be filed with the Secretary of the Department of Labor, who has the power to investigate and bring an action against noncompliant employers.
EFMLEA
An employee can only initiate an action against an employer that is subject to the FMLA.
Complaints for violations of the EPSLA and/or the EFMLEA can be filed with the Secretary of the Department of Labor, who has the power to investigate and bring an action against employers for their violations
On April 1, 2020, Governor DeSantis issued Executive Order Number 20-91, which is a statewide stay-at-home order for Florida that took effect at midnight on April 3, 2020. This Order requires persons in Florida to stay at home, unless providing or obtaining “essential services” or conducting “essential activities.” The Executive Order also allows only “essential” businesses or services to remain open. But what does “essential” mean, what can employees do, and what businesses are “essential”? Below is a noncomprehensive list to help individuals and businesses better understand what they can and cannot do.
Please keep in mind that businesses and individuals should remain up to date with any new Executive Orders that may impact the one discussed above. At present, this Executive Order does not prescribe penalties for violations, but it is likely that the Executive Order will be supplemented in the coming hours or days to include penalties. Read the Executive Orders. Additionally, businesses and individuals should also make sure to stay up to date with their county’s and/or city’s orders, because these will apply if they do not conflict with the Executive Order.
If you have specific questions or would like to discuss your specific concerns, please reach out to us. We would be more than happy to help!
Essential Activities:
Attending religious services that take place in churches, synagogues, and other houses of worship;
Participating in recreational activities, so long as social distancing guidelines are complied with (these activities include, but are not limited to, walking, biking, hiking, fishing, hunting, running, or swimming);
Taking care of pets; and
Caring for otherwise assisting a loved one or friend.
Healthcare providers and caregivers, including, but not limited to, dentists’ offices, urgent care centers, clinics, rehabilitation facilities, physical therapists, mental health professionals, psychiatrists, therapists, and pharmacies;
This also includes practically anything in the healthcare space, such as hospital and laboratory personnel (including accounting, administrative, admitting and discharge, engineering, source plasma and blood donation, food service, housekeeping, medical records, sanitarians, etc.), workers performing research and development for the COVID-19 response; public health/community health works that compile, model, analyze, and communicate public health information; blood and plasma donors and their employees; workers that manage health plans, billing, and health information that cannot practically work remotely; workers performing mortuary funeral, cremation, burial, and related services; etc. For a more comprehensive list of healthcare services that are deemed essential, please refer to the list detailed by the U.S. Department of Homeland Security in its Guidance on the Essential Critical Infrastructure Workforce, v. 4 (Updated Aug 10, 2021) (“Homeland Security Guidance”);
Grocery stores, farmers’ markets, farm and produce stands, supermarkets, food banks, convenience stores, and other establishments engaged in the retail sale of canned food, dry goods, fresh fruits and vegetables, pet supply, fresh meats, fish, and poultry, and any other household consumer products (such as cleaning and personal care products). This authorization includes stores that sell groceries and that also sell other non-grocery products, and products necessary to maintaining the safety, sanitation, and essential operations of residences. For more information on the specifics of what is “essential” within the Food and Agriculture industry, please refer to the Homeland Security Guidance, which features a section specifically dedicated to Food and Agriculture;
Professional services, such as legal or accounting services, when necessary to assist in compliance with legally mandated activities;
Childcare facilities providing services that enable employees exempted in this order to work as permitted. To the extent possible, childcare facilities should operate under the following mandatory conditions:
Childcare must be carried out in stable groups of 10 or fewer (inclusive of childcare providers for the group).
Children and childcare providers shall not change from one group to another.
If more than one group of children is cared for at one facility, each group shall be in a separate room. Groups shall not mix or interact with each other;
Businesses that provide food, shelter, social services, and other necessities of life for economically disadvantaged or otherwise needy individuals;
Food cultivation, including farming, livestock, and fishing;
Banks and related financial institutions;
Hardware stores;
Businesses providing mailing and shipping services, including post office boxes;
Newspapers, television, radio, and other media services;
Private colleges, trade schools, and technical colleges, but only as needed to facilitate online or distance learning;
Laundromats, dry cleaners, and laundry service providers;
Landscape and pool care businesses, including residential landscape and pool care services;
Contractors and other tradesmen, appliance repair personnel, exterminators, and other service providers who provide services that are necessary to maintaining the safety, sanitation, and essential operation of residences and other structures;
Restaurants and other facilities that prepare and serve food. Schools and other entities that typically provide free food services to students or members of the public may continue to do so on the condition that the food is provided to students or members of the public on a pick-up and takeaway basis only. Schools and other entities that provide food services under this exemption shall not permit the food to be eaten at the site where it is provided, or at any other gathering site;
Businesses that supply office products needed for people to work from home;
Gas stations and auto-supply, auto-repair, and related facilities;
Businesses that supply other essential businesses with the support or supplies necessary to operate, and which do not interact with the general public;
Businesses that ship or deliver groceries, food, goods, or services directly to residences;
Airlines, taxis, and other private transportation providers providing transportation services via automobile, truck, bus, or train;
Home-based care for seniors, adults, or children;
Businesses operating at any airport, seaport, or other government facility, including parks and government offices;
Pet supply stores;
Logistics providers, including warehouses, trucking, consolidators, fumigators, and handlers;
Telecommunications providers, including sales of computer or telecommunications devices and the provision of home telecommunications;
Provision of propane or natural gas;
Office space and administrative support necessary to perform any of the above-listed activities;
Open construction sites, irrespective of the type of building;
Architectural, engineering, or land surveying services;
Assisted living facilities, nursing homes, and adult daycare centers, and senior residential facilities;
Factories, manufacturing facilities, bottling plants, or other industrial uses. For more information on the specifics of what is “essential” within the
Manufacturing industry, please refer to the Homeland Security Guidance, which features a section specifically dedicated to Manufacturing;
Waste management services, including collection and disposal of waste;
Any business that is interacting with customers solely through electronic or telephonic means, and delivering products via mailing, shipping, or delivery services;
Public, private, and voluntary personnel (front line and management) in emergency management, law enforcement, fire and rescue services, emergency medical services, and private security, to include public and private hazardous material responders, air medical service providers (pilots and supporting technicians), corrections, and search and rescue personnel. This also includes 911 call center employees that cannot perform their duties remotely, vendors that support law enforcement service and response operations, public agency workers that respond to abuse and neglect allegations, workers that support weather disaster/natural hazard mitigation and prevention activities, etc.;
Workers supporting the energy sector, regardless of the energy source (including but not limited to nuclear, fossil, hydroelectric, or renewable), segment of the system, or infrastructure the worker is involved in, or who are needed to monitor, operate, engineer, and maintain the reliability, safety, environmental health, and physical and cybersecurity of the energy system. For more information on the specifics of what is “essential” within the Energy industry, please refer to the Homeland Security Guidance, which features a section specifically dedicated to Energy;
Employees needed to operate and maintain drinking water and wastewater/drainage infrastructure. This is fairly broad. For more information on the specifics of what is “essential” related to Water and Wastewater, please refer to the Homeland Security Guidance, which features a section specifically dedicated to the Water and Wastewater;
Workers who support the operation, inspection, and maintenance of essential public works facilities and operations, including bridges, water and sewer main breaks, fleet maintenance personnel, construction of critical or strategic infrastructure, traffic signal maintenance, emergency location services for buried utilities, maintenance of digital systems infrastructure supporting public works operations, and other emergent issues;
Workers who provide support, such as road and line clearing, to ensure the availability of and access to needed facilities, transportation, energy and communications;
Information technology workers. For more information on the specifics of what is “essential” related to the Information Technology industry, please refer to the Homeland Security Guidance, which features a section specifically dedicated to Information Technology;
Elections personnel to include both public and private sector elections support;
Workers supporting the operations of the judicial system;
Trade Officials;
Clergy for essential support;
Staff at government offices who perform title search, notary, and recording services in support of mortgage and real estate services and transactions;
Workers supporting the chemical and industrial gas supply chains, including workers at chemical manufacturing plants, workers in laboratories, workers at distribution facilities, workers who transport basic raw chemical materials to the producers of industrial and consumer goods, including hand sanitizers, food and food additives, pharmaceuticals, paintings and coatings, textiles, building materials, plumbing, electrical, and paper products. For more information on the specifics of what is “essential” related to the Chemical industry, please refer to the Homeland Security Guidance, which features a section specifically dedicated to Chemicals;
Workers who support the essential services required to meet national security commitments to the federal government and U.S. Military. These individuals include, but are not limited to, space and aerospace; mechanical and software engineers (various disciplines), manufacturing/production workers; IT support; security staff; security personnel; intelligence support, aircraft and weapon system mechanics and maintainers; and sanitary workers who maintain the hygienic viability of necessary facilities. For more information on the specifics of what is “essential” related to the Defense Industrial Base industry, please refer to the Homeland Security Guidance, which features a section specifically dedicated to Defense Industrial Base;
Workers in animal shelters;
Workers responsible for the leasing of residential properties to provide individuals and families with ready access to available housing;
Workers responsible for handling property management, maintenance, and related service calls who can coordinate the response to emergency “at-home” situations requiring immediate attention, as well as facilitate the reception of deliveries, mail, and other necessary services;
Workers providing personal and household goods repair and maintenance;
Workers providing disinfection services, for all essential facilities and modes of transportation, and supporting the sanitation of all food manufacturing processes and operations from wholesale to retail;
Support required for continuity of services, including commercial disinfectant services, janitorial/cleaning personnel, and support personnel functions that need freedom of movement to access facilities in support of front-line employees; and
Postal, parcel, courier, last-mile delivery, and shipping and related workers, to include private companies.
With bank lobbies closed and large numbers of people working from home to slow the spread of COVID-19, many are without reliable notaries public or do not want to risk potential exposure to the virus through physical interactions. This has many scrambling to comply with critical deadlines or otherwise take care of business. However, fortunately, Florida has joined the ranks of states that permit online notarial acts, and people can have their documents notarized from the comfort of their own homes or offices, even if outside of Florida.
But not so fast! Not just any notary public can complete online notarizations.
If you are in need of an online notary public, look for someone who holds the designation of a Remote Online Notary service provider, or “RON.” This notary public has registered with the State as an online notary, posted a $25,000.00 bond, holds $25,000.00 of errors and omissions insurance and has completed the required educational course.
Once a qualified online notary public is selected and retained, the online public notary will confirm the identity of the signer either through personal knowledge or through the following: (1) remote presentation of the signer government-issued ID, (2) authentication of the ID, and (3) knowledge-based authentication, which involves answering at least five questions within a two-minute time span, such as what vehicles the signer has owned or where they have lived.
The signer will then appear before the online notary public by means of audio-video communication technology that allows for real-time, two-way communication in which the participants are able to see, hear, and communicate with one another. This technology will be used to record the signer and the online notary public as they complete the signing of the document in question and the required notarial act.
See? The process is easy enough, but please keep in mind that it still takes longer than in-person notarization, and because most notaries are not RON’s and many people are seeking out RON’s right now due to COVID-19, finding an available qualified notary can be difficult. Those seeking notarial services—especially those under deadline—should prepare their documents and retain a RON to complete the notarial act as soon as possible.
Also note, that online notaries are unable to solemnize marriages or notarize probate instruments until July 2020.
If, someone is up against a deadline and absolutely cannot find a RON or an in-person notary to perform a required notarial act, the Florida Supreme Court issued Administrative Order AOSC20-16 on March 18, 2020, which temporarily allows oaths to be administered remotely for testimony, depositions, and other out-of-court legal testimony, so long as the notary or other qualified person can positively identify the “witness” via audio-video communications equipment. This arguably could provide a basis for allowing any notary that is not a RON to perform a remote notarial act. Please keep in mind though that the AOSC20-16 is not entirely clear and might apply to only testimony like depositions, where there is a requirement that the individual administering the oath be physically present—and not to non-litigation-related documents such as documents required to close real estate deals or comply with Florida’s Construction Lien law.
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