Federal And Local COVID-19 Developments Affecting Employers
Since we published our first Disclosure article concerning the coronavirus and COVID-19 on March 17, 2020, our team has seen substantial changes in the law and regulations affecting businesses and employers, ranging from the passage of the Families First Coronavirus Response Act (“FFCRA”) on the federal level, to the closure of gymnasiums and fitness centers on the state level, to most recently, “safer from home” restrictions on a local level. As we continue to weather this storm together, we want to provide you with the most recent essential updates concerning 1) the Emergency Family and Medical Leave Expansion Act and Emergency Paid Sick Leave Act of the FFCRA (collectively, the “paid leave provisions”), 2) the mandatory posting requirements of the paid leave provisions, 3) Pinellas County’s Safer at Home Order, and 4) the anticipated Hillsborough County Safer from Home Order.
Important DOL Guidance Regarding the Paid Leave Provisions of the FFCRA
The Department of Labor (“DOL”) recently issued its Families First Coronavirus Response Act: Questions and Answers. As we wait for more formal guidance from the Secretary of Labor on the paid leave provisions, this document provides some useful insight and important information for employers. Employers should carefully review the entire document, but we have identified some of the key highlights:
- According to the DOL, the paid leave provisions are effective April 1, 2020 and apply to leave taken between April 1, 2020 and December 30, 2020. This effective date is a day earlier than the text of the FFCRA had provided.
- A corporation (including its separate establishments or divisions) is considered a single employer, and each of its employees must be counted towards the 500-employee threshold. In counting employees, employers should include 1) full-time and part-time employees, 2) employees on leave, 3) temporary employees who are jointly employed by you and another employer, and 4) day laborers supplied by a temporary agency when there is a continuing employment relationship. Independent contractors are not counted towards the 500-employee threshold. As always, employers should be mindful of joint employer and integrated employer issues.
- The regular rate of pay for purposes of the paid leave provisions is the average of the employee’s regular rate of up to six months prior to the date on which leave is taken, or the average rate of pay for each week worked if the employee has been employed less than six months. Commission, tips, or piece rates are included in the calculation of the regular rate. The regular rate can also be calculated by totaling all compensation that is included in the regular rate over the above period and dividing that sum by all hours worked in the same period.
- The DOL will be providing additional information on how to elect the small business exemption when the employer has fewer than 50 employees.
The DOL has also provided helpful Fact Sheets, Questions and Answers on the FLSA and FMLA, and Field Assistance Bulletin on its website: COVID-19 and the American Workplace.
Employer Posting Requirements for the Paid Leave Provisions of the FFCRA
On or before April 1, 2020, employers must post the notice provided by the DOL: Employee Rights: Paid Sick Leave and Expanded Family and Medical Leave under the Families First Coronavirus Response Act. The notice must be posted in a conspicuous place on the employer’s premises (typically where other required federal and state notices are posted). If an employer has a portion of its workforce that is teleworking, however, the employer may satisfy the posting requirement by 1) emailing or direct mailing the notice to employees or 2) posting the notice on an employee information internal or external website. The DOL has also published the Families First Coronavirus Response Act Notice – Frequently Asked Questions to help employers comply with the notice requirement.
The Pinellas County Safer at Home Order
On March 25, 2020, the Pinellas County Board of County Commissioners passed Resolution No. 20-20, COVID-19 – Safer at Home Order (the “Order”), because COVID-19 continues to pose a direct threat to public health and new cases of COVID-19 continue to increase within Pinellas County. The Order became effective Thursday, March 26, 2020 at 11:27 a.m. The Order will expire when Pinellas County’s declaration of a state of local emergency expires. Unfortunately, there is not a set date on which the declaration will expire. A summary of the Order can be found on Pinellas County News: Commission issues “Safer at Home” Order.
For businesses, the Order requires that businesses close storefront operation and limit customer foot traffic if they do not perform “Essential Services” or cannot maintain CDC social distancing guidelines. Businesses can maintain internal and minimum basic operations, but are required to enforce CDC social distancing and group gathering guidelines. Any business, other than those providing Essential Services, that intends to remain open pursuant to the Order by maintaining compliance with CDC guidance must post a notice, clearly visible at all times to those present on the premises, including patrons and employees, in a form to be establish by the County Administrator. Essential Services are defined to include thirty-four types of businesses and services.
Businesses that do not comply with the Order will be subject to the appropriate enforcement action up to and including orders to close and criminal charges.
In addition, places of public assembly must close. Places of public assembly include, but are not limited to, amusement rides, carnivals, water parks, publicly accessible pools, zoos, museums, arcades, fairs, publicly accessible children’s play centers, publicly accessible playground equipment, theme parks, bowling alleys, pool halls, movie and other theaters, concert and music halls, country clubs, social clubs and fraternal organizations.
Finally, individuals in Pinellas County are ordered to 1) comply with CDC guidelines to maintain a distance of 6 feet from other persons and not in groups of more than 10 and 2) limit non-essential activity and transportation. Individuals can still leave their homes to meet essential needs such as food, healthcare, laundry and outdoor recreation.
Pinellas County has recently published the Pinellas County “COVID-19 Safer at Home” Order FAQ to assist business and individuals in understanding the Order.
The Hillsborough County Safer from Home Order
While a “Safer at Home” order for Hillsborough has not been finalized, the Hillsborough County Emergency Policy Group agreed to move forward with drafting a “Safer from Home country wide directive and a “Curfew” order, which may go into effect as early as Friday, March 27, 2020. According to Hillsborough County’s website, key provisions of the directive and order will likely include:
- A curfew that would be from 10 p.m. to 5 a.m. Monday through Friday, and a 24-hour curfew starting at 10 p.m. Friday through Monday at 5 a.m.
- Allowing residents the ability to obtain necessary food, medicine, and essentials, as well as being outdoors and enjoying recreation.
- Requiring essential businesses to have employees telecommute, if possible.
- Allowing businesses whose employees cannot telecommute to stay open if employees can maintain a 6-foot distance from customers and fellow employees. Workers, however, who could not maintain 6-foot physical distance from customers could not work. Businesses that cannot by definition maintain the necessary physical distancing from customers would be required to close until further notice.
- Requiring essential businesses to provide employment opportunities to those who lose jobs because of this emergency by working directly with CareerSource and other designated employment and job agencies.
A full summary of the anticipated directive and order can be found by reviewing the most recent Hillsborough County news post: Hillsborough County Emergency Policy Group Expected to Vote on Directive and Order on Thursday. We will continue to monitor the situation and will post the Order if and when Hillsborough County enacts one.
Hillsborough County’s Safer at Home Order will become effective today, March 27, 2020 at 10:00 pm. The entire Safer at Home Order, Executive Order No. 2020 is available through the City of Tampa website. Summaries of the Order can be found on Hillsborough County’s Emergency Management, Safer at Home website and the City of Tampa’s Safer at Home website.