CORONAVIRUS AND THE WORKPLACE
by Caitlin Szematowicz on March 25th, 2020 in Labor and Employment
As of Monday, the Florida Department of Health confirmed one thousand four hundred and twelve (1,412) cases of COVID-19 in the State of Florida.
Executive orders were issued last week which effectively shut down or significantly restrict bars, nightlife, gyms, and restaurants in Florida. On Friday, the Governor entered an executive order which provides that health care practitioners (such as dental offices, surgical centers, and hospitals) are prohibited from providing medically unnecessary, non-urgent, or non-emergency procedures or surgeries. More executive orders with additional restrictions may follow.
The Impact of the Coronavirus on Florida’s Workplace
The impact of the coronavirus on Florida’s workplace has been drastic and resulted in many closed businesses and employees who are out of work. Indeed, many businesses have closed or are facing imminent closures. Many businesses are transitioning to work remotely. Other businesses have remained open.
Businesses which remain open should be establishing policies to reduce risk. Such policies may include ensuring that employees are practicing effective social distancing (the Centers for Disease Control and Prevention, also known as the CDC, recommends a six foot distance), enforcing restrictions on who can enter the office, encouraging employees to work remotely when possible, encouraging tele-conference meetings instead of in-person meetings, and/or changing office hours or employee schedules to reduce the amount of employees in the office at a given time.
Many employers have questions about their responsibilities during this time, and it is important for employers to be aware of various employment laws which may apply in this scenario. For instance, the Occupational Safety and Health Administration (OSHA) requires employers to provide a work environment which is free from certain recognized hazards. Since coronavirus can be deemed such a hazard, employees with coronavirus should not be required to come into the office. OSHA also has guidelines in place for pandemics, and since the coronavirus has been declared a pandemic, employers should familiarize themselves with OSHA’s guidance.
How Should Employers Be Handling the Coronavirus at the Workplace?
Employers should be encouraging sick employees to stay at home and to seek medical care. Employers should also make their employees aware of available sick leave benefits. Further, employers should not generally terminate an individual who is diagnosed with coronavirus – or take any type of adverse action against that individual. Such action may be violative of the law and constitute retaliation.
There are new developments each day which are aimed at providing assistance to employers and employees during these difficult times. Last Wednesday, the “Families First Coronavirus Response Act” was signed into law and will guarantee workers paid time off. Private employers with less than 500 employees generally must provide full-time employees with two weeks of paid time off if they cannot work for virus-related reasons. If the employee is taking time off to self-isolate/quarantine due to a diagnosis, is required to quarantine to comply with a recommendation or order because the employee is exhibiting symptoms or was exposed to the virus, or is seeking care or a diagnosis due to exhibiting symptoms of the virus, the employee is typically to be paid their normal pay. If the employee is taking time off to care for a family matter or child whose school has closed/childcare is unavailable, the employee should be entitled to two-thirds their regular pay. Part-time employees can be entitled to pay as well. The Act also amends the FMLA to give paid time off (at partial pay) if an employee cannot presently work due to the coronavirus. Lastly, the Act provides certain tax credits to businesses for costs associated with the Act. The provisions of this Act go into effect on April 1, 2020.
On March 16, 2020, Governor Ron DeSantis also activated the Florida Small Business Emergency Bridge Loan Program to support small businesses impacted by COVID-19. On March 21, 2020, Governor Ron DeSantis announced that the Florida Department of Economic Opportunity (DEO) has approved the first two Small Business Emergency Bridge Loans in order to help businesses which have been impacted by the coronavirus.
Additional legislation, executive orders, or announcements may be announced in the coming days to address the effect that the coronavirus is having in the workplace and to our community in general.
Coronavirus Unemployment Claims
With many American workers facing lay-offs, there has also been an influx of unemployment claims being filed. In fact, Florida’s Department of Economic Opportunity recently reported that over one hundred and thirty thousand (130,000) calls have been made to Florida’s unemployment agency in only four days. Yesterday, in an attempt to help remove barriers for those seeking reemployment assistance, the Florida Department of Economic Opportunity announced it has waived certain requirements for reemployment assistance.
Further, when an employee is terminated, there are various contractual issues which may come into play. For instance, employees and employers may have questions concerning specific provisions in employment agreements (or, notably, the enforceability of those provisions). These questions may include whether advance notice is required to be provided to an employee before the employee can be terminated and what defenses may be available in this scenario (such as frustration of purpose and/or impossibility of performance) which supports the employer not needing to provide the contractually agreed-upon advance notice.
Moreover, employers may elect to provide employees that they are terminating with severance packages. A severance package provides pay and benefits which an employee can be entitled to receive when he or she is terminated from employment by the employer. Typically, a severance package is provided in exchange for an employee releasing claims against his or her employer. Employers should always ensure they have a valid severance agreement in place. For example, if the employee is over the age of forty (40), an employer needs to ensure that its severance agreement is in compliance with the Age Discrimination in Employment Act of 1967 (ADEA), as amended. Likewise, employees who are presented with a severance agreement by their employer should have an attorney review the agreement to ensure their interests are adequately protected and to negotiate potential additional benefits or pay.
The employment law attorneys at Battaglia, Ross, Dicus & McQuaid, P.A. hope that you remain healthy and safe during these times. We are always here for you.