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COVID-19 Employment Law

What if Employees Are Scared to Return to Work During COVID Reopening?

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.

Read the full article on the Tampa Bay Business Journal. (subscription required).

Categories
COVID-19

Governor DeSantis’s Executive Order on Phase 1 to Reopen Florida

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:

  • Senior Women Eating OutdoorsThe 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.

Business COVID-19 Waivers for Employees and Customers

Categories
Business Law COVID-19

Virtual Mediation During COVID-19

With the coronavirus pandemic forcing more people to stay home, businesses across the country must find ways to perform their work without face-to-face interactions. Yet the pandemic has not reduced sources of disagreement.

Fast resolution of conflicts is often necessary for businesses to navigate this unusual time, and mediation can help with that. Yet the demands of social distancing make traditional, face-to-face mediation difficult. To answer this concern, Tampa mediator, Jeff Lieser, offers virtual business mediation services.

What Is Digital Business Mediation?

Digital mediation is an online form of traditional mediation. Specifically, it:

  • Man Attending a Virtual MeetingConnects disputing parties with a mediator through a secure, private online conference platform.
  • Allows the mediator to walk the parties through their dispute without face-to-face conflict.
  • Allows for electronic signatures of any resulting legal documents or agreements.
  • Takes place with no face-to-face, in-person contact, helping all parties maintain proper social distancing to stop the spread of COVID-19.

With virtual mediation, you get the same high-level mediation services you expect from Mr. Lieser, but in a virtual environment.

Does Online Mediation Work?

Jeff Lieser is a skilled business and real estate mediator. He knows how to spot subtle cues, like body language and facial expression, of the participants to help guide the discussion. You may wonder if virtual mediation is as effective. The answer is yes. Even in a digital environment, a skilled mediator can facilitate resolution.

For business owners struggling due to COVID-19, disagreements are going to happen. Through our virtual mediation services, Florida businesses can work through those differences. We can help you come to a successful conclusion, all while doing your part to reduce the spread of COVID-19.

Categories
COVID-19

Florida and Essential Critical Infrastructure Workers 

As we move through and beyond the COVID-19 pandemic, all of us have been challenged to absorb a range of new terminology and guidelines to help us better maneuver through the crisis. This has been the case in both our personal and professional lives. One of the first waves of information all of us have had to adjust to is what the government considers Essential Critical Infrastructure Workers. This is what many have simply come to refer to as essential vs non-essential employees.

The establishment of these guidelines falls under the authority of the Cybersecurity and Infrastructure Security Agency (CISA) of the U.S. Department of Homeland Security. A memo from the agency dated March 28, 2020 helps define essential critical infrastructure employees. This can be a point of reference for employers in determining whether their particular employees can be deemed essential. This, of course, can have a far-reaching impact in many aspects of conducting business in and through the COVID-19 crisis.

The Range of Essential Critical Infrastructure Industries

The government’s memo provides a broad view of the many industries with workers that may be considered essential during this period. They include:

  • Police Boat Patrol as Florida Critical InfrastructureHealthcare/Public Healthcare
  • Critical Manufacturing
  • Hazardous Materials
  • Financial Services
  • Financial
  • Defense Industrial Base
  • Commercial Facilities
  • Food and Agriculture
  • Energy
  • Water and wastewater
  • Transportation and Logistics
  • Public Works and Infrastructure Support Services
  • Communications and Information Technology
  • Other Community or Government-based Operations and Essential Functions
  • Law Enforcement, Public Safety and other First Responders
  • Residential/Shelter Facilities and Services
  • Hygiene Products and Services
  • Workers supporting the operations of the judicial system, including judges, lawyers, and others providing legal assistance.

As you can see, the list is a quite extensive one. The memo also includes this interesting caveat concerning its list:

This list is advisory in nature. It is not, nor should it be considered, a federal directive or standard. Additionally, this advisory list is not intended to be the exclusive list of critical infrastructure sectors, workers, and functions that should continue during the COVID-19 response across all jurisdictions. Individual jurisdictions should add or subtract essential workforce categories based on their own requirements and discretion.”

This leaves significant leeway for interpretation. Therefore, if you have any questions about whether employees may be considered essential, you should contact our Tampa employment lawyers at Lieser Skaff Alexander. We are here to help your business navigate through coronavirus-related legal issues, including those that are employee-related. Contact us today with your questions. We are open and conducting business-as-usual, with precautions.

 

Categories
COVID-19

EEOC Clarifications and Guidance Regarding COVID-19 Medical Information and ADA Accommodation Requests

There have been numerous questions posed by employers in regard to confidentiality of medical information pertaining to the COVID-19 pandemic. The U.S. Equal Employment Opportunity Commission (EEOC) has attempted to address some of the most common questions which employers feel need addressing. Here are some guidelines:

Store Clerk with Mask Checking Out CustomerWhat medical information may be retained in an employee’s file?

Employers may retain information regarding COVID-19 in an employee’s file, provided they are only kept in medical files and not in general personnel files. Access must only be granted to those who have access to information which would otherwise be considered confidential.

Am I allowed to require employees have their temperature taken before entering the workplace?

Yes, an employer may require this, provided it is requested of all employees. In cases where an employer maintains such information in a daily log, that log must be confidential.

Can I release the name of an employee who has been diagnosed with COVID-19?

Only in cases where the name is provided to a public health agency. Employers may not share such information with other employees unless the employee gives explicit permission for them to do so.

Does the ADA allow an employer to send an employee home or have them stay home if their symptoms are indicative of COVID-19?

Yes. Employers may request such an employee stay at home or send them home for a period consistent with guidelines issued by the CDC.

What guidance can you provide to staffing agencies or contractors regarding a team member who is diagnosed with COVID-19?

In these instances, you may provide any employer who was in contact with the team member their name. This allows the company where they worked to ensure they take extra precautions and be aware of potential spread within the workplace.

How do I handle employees who may be at greater risk of COVID-19 due to preexisting health concerns?

Employers must still adhere to ADA “reasonable” accommodations guidelines. In the case of COVID-19 fears this may include:

  • Having an employee work from home when possible
  • Workplace accommodations such as barriers between workstations
  • Modified work schedules or assignments
  • Temporary assignment to new duties

What guidance does the ADA offer about employees with mental illness or disorders?

Because the COVID-19 pandemic has the potential to exacerbate mental illness or disorders, employers should take necessary steps to offer any employee with a pre-diagnosis of such a condition any accommodations which are reasonable.

Employers who have additional questions should review information on the Job Accommodation Network (JAN), the U.S. Equal Employment Opportunity Commission (EEOC), and the guidance for employers offered by the Centers for Disease Control (CDC).

Employers who still have questions about allowing employees to return to Florida workplaces should contact us during Covid-19.

Categories
COVID-19

NEW CDC GUIDANCE ON RETURN-TO-WORK STANDARDS FOLLOWING CORONAVIRUS EXPOSURE

Employers are rightfully concerned about having workers return to their place of business after they have been diagnosed with or exposed to COVID19. Fortunately, the CDC has provided guidance for employers who have workers classified as “critical infrastructure workers”. Employers who fall into this category include, but are not limited to employers in sectors such as critical manufacturing, law enforcement, energy, transportation, haz-mat responders, janitorial staff,911 call center staff members and others. Employers who are uncertain if these guidelines apply to them, can review our blog post on Essential Critical Infrastructure Workers.

Understanding Exposure Versus Potential Exposure

Potential exposure is defined as “a household contact or having close contact within six feet of an individual with confirmed or suspected COVID-19.”

Previous Guidance Versus New Guidance

Under previously issued guidance, the CDC recommended any employee who was potentially exposed to COVID19 be sent home and remain home for up to 14 days. However, under the new guidance these employees may remain at work provided some additional guidelines are followed, including:

  • For Employers — employers must ensure all workplace areas are routinely disinfected. This process helps curb the potential danger of spreading to other employees. In addition, prior to the employee entering the workplace, the employer should ensure the employee has no symptoms and does not have a fever.
  • For Employees — the employee who remains asymptomatic may return to the workplace provided they wear a face covering for up to 14 days following their return to the workplace. Employees should also continue monitoring themselves for symptoms in conjunction with the employer’s occupational health program. The employee should also maintain a recommended distance of six feet or more from others in the workplace as their assignments allow.

Employers and employees should thoroughly review the CDC guidelines to ensure they are doing everything possible to avoid spreading the Coronavirus.

 

Categories
COVID-19

COVID-19 and Contractual Commitments

The COVID-19 pandemic has devastated businesses across the country and many owners have been left to wonder if they are legally bound by contracts they signed prior to the outbreak. Unfortunately, there is not simple yes or no answer, but there are circumstances where the contract can be breached without penalties. Every contract is unique and you will need to consult with a business law firm to determine your rights and obligations.

Force Majeure Clause

Force majeure means “superior force” in French and is often referred to as the “Act of God” exception to meeting contractual obligations. In a contract, a force majeure clause recognizes that a significant unforeseeable event could make it impossible for one party to meet its obligations and they should not be penalized under these circumstances.

An enforceable force majeure clause often includes defined, limited circumstances as to when it will be applicable. Most of these clauses include natural disasters, such as a flood or hurricane, but some go further to encompass war or civil unrest, shortages of power or epidemics, pandemics and mandated quarantines. Even if a force majeure clause does not specifically include pandemics, such as COVID-19, that does not mean you cannot seek to use it to excuse your obligations under a contract. For this reason, you need to speak with a business attorney to review the contract and your circumstances. A business attorney  will analyze your situation, recommend a legal course of action, and guide you through the process.

Early Termination/Termination of Convenience

If an agreement does not have an enforceable force majeure clause, other terms may provide protection against inability to perform or unexpected cancellations. Some contracts contain a clause that stipulates an option for early termination or termination for convenience. When this clause exists, it often includes specific notice provisions and other express termination language so it is important to closely follow these requirements.

Impracticality and Frustration of Purpose

In addition to the terms of a contract, Florida courts recognize several legal principles that excuse contract performance, including-the impossibility of performance and frustration of purpose or impracticality. Impossibility of performance addresses situations where the purpose for which the contract was created has become impossible to perform for one of the parties. This legal principle only applies to unforeseeable risks that could not have been the subject of an express provision of the contract.

Frustration of purpose occurs when the value of performance of the contract has been frustrated or destroyed – example, a restaurant that regularly purchases produce from a farmer pursuant to a contract, but cannot meet its minimum monthly purchasing obligation because it was forced to close or limit service under Florida’s COVID-19 response regulations.

Seek Legal Counsel

Business owners should not assume that a contract will automatically be voided due to COVID-19. It is important to consult with a business attorney to review your contact and understand your options and obligations.

Categories
COVID-19

What Businesses Need to Know About Employee Leave and the Families First Coronavirus Response Act (FFCRA)

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:

  1. The employee is subject to a federal, state, or local quarantine or isolation order related to COVID-19 (Reason 1);
  2. The employee has been advised by a health care provider to self-quarantine because of COVID-19 (Reason 2);
  3. The employee is experiencing symptoms of COVID-19 and is seeking a medical diagnosis (Reason 3);
  4. 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);
  5. 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
  6. 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

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