Diane P. Perez

Frequently Asked Questions

These FAQs are intended to be a general discussion of common employment-related issues regarding the COVID-19 pandemic and should not be taken as specific legal advice with regard to your individual situation. Many legal issues are determined by statutes, agency regulations and guidance, and case law that may frequently change. You are encouraged to speak with your lawyer or to retain our firm to obtain a legal opinion regarding your specific circumstances. These FAQs do not create an attorney-client relationship between you and our firm.

1. What protections does the Families First Coronavirus Response Act provide to employees?

The Families First Coronavirus Response Act (FFCRA), which amends the Family and Medical Leave Act (FMLA) and is effective on April 1, 2020, provides that eligible employees (those who have been employed for a minimum of 30 days) working for employers with fewer than 500 employees may be eligible for 12 weeks of qualifying leave to care for their minor son or daughter due to a school or place of care closure or an unavailable child care provider as a result of COVID-19. While the first 10 days of such qualifying leave would be unpaid, the remainder must be paid by the employer.

An eligible employee in need of such leave may use his or her accrued Paid Time Off during the first 10 days of leave, after which paid leave will be at 2/3 of the employee's regular rate of pay up to $200 per day and $10,000 in the aggregate. In most circumstances, the law requires reinstatement of employees returning to work after FFCRA qualifying leave.

2. What other protections does the Families First Coronavirus Response Act provide to employees?

The Families First Coronavirus Response Act (FFCRA) also provides for two weeks of paid sick leave for employees employed by employers with fewer than 500 employees. The need for such paid leave must arise because: (1) the employee is subject to a federal, state, or local quarantine or isolated order related to COVID-19; (2) the employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19; (3) the employee is experiencing symptoms of COVID-19 and is seeking a medical diagnosis; (4) the employee is caring for an individual who is subject to a federal, state or local quarantine or isolation order related to COVID-19 or an individual who has been advised by a health care provider to self-quarantine due to concerns related to COVID-19; (5) the employee is caring for his or her child due to a school closure or place of care closure due to COVID-19 related reasons; or (6) the employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services.

Unlike the 10 days period in Q1 above, an employer cannot require an employee to use his or her accrued paid time off in lieu of paid leave. The amount of paid leave will depend on whether the employee is a full time or part time employee (for part time employees, the amount of paid leave is based on the average number of hours worked in two weeks), the employee's regular rate of pay, and the reason(s) why the leave is needed. The law also prohibits an employer from retaliating against an employee for taking such leave.

3. If an employee is furloughed because of a workplace closure before the law's April 1, 2020 effective date, is the employee still entitled to the paid leave provided for in the Families First Coronavirus Response Act?

No. The U.S. Department of Labor recently issued guidance on the Families First Coronavirus Response Act (FFCRA) that makes clear that employees who were furloughed prior to the April 1, 2020 effective date of the law are not entitled to paid leave.

4. Can an employer take the temperature of its employees or ask if they have COVID-19 or its symptoms?

Yes, an employer may do so without violating the Americans with Disabilities Act so long as it does so for all employees and the employees are not teleworking. However, if the employee does so only with regard to certain employees, the employer must have a reasonable belief based on objective evidence that an employee may have COVID-19. Should an employee refuse to cooperate and provide answers to such questions, an employer can bar the employee from entering the workplace.

5. Can an employer ask an employee if he or she has had contact with anyone who has been diagnosed with or has symptoms of COVID-19 without violating the Americans with Disabilities Act?

Yes, an employer may do so. However, an employer should limit such questions to contact with "anyone" as opposed to contact with "family members" given the latter may violate the Genetic Information Nondiscrimination Act (GINA).

6. Is COVID-19 a disability?

According to the U.S. Equal Employment Opportunity Commission, as of March 27, 2020, it is unclear whether COVID-19 is or could be a disability under the Americans with Disability Act (ADA) or the Rehabilitation Act.

7. If an employee suffers from a disability that puts him or her in greater risk should the employee contract COVID-19, could the employee ask to telework or to take a leave of absence as a reasonable accommodation?

Yes. The employer may verify the existence of the employee's disability and may have to provide an accommodation if reasonable and not an undue hardship on the employer.

8. Is a gig worker or independent contractor eligible to receive unemployment compensation benefits in Florida?

Usually, unemployment compensation benefits are available only to employees who have lost their jobs. On occasion, a worker who has been classified as an independent contractor may contest his or her classification, arguing the relationship was actually one of employer-employee. In those situations, the individual contesting the independent contractor classification may be entitled to receive unemployment compensation benefits, if successful.

In the age of COVID-19, unemployment compensation benefits in Florida have been extended not just to terminations but also furloughs (i.e. being sent home without pay for an extended period of time). The stimulus package signed into law by President Trump on March 27, 2020 also extends unemployment compensation benefits to gig workers and independent contractors. Therefore, an individual eligible for unemployment compensation benefits as a result of the COVID-19 pandemic will not only be entitled to $600 weekly but also, most likely, to Florida unemployment compensation benefits.

To apply for unemployment compensation, an employee can visit Florida's Department of Economic Opportunity at: http://floridajobs.org/.

9. How much notice must an employer provide to employees if the employer needs to close or shut down?

Depending on a number of factors, such as the size of the employer, the action the employer takes, the duration of the action, and the number of employees that are impacted by such action, the Worker Adjustment and Retraining Notification Act (WARN) may apply. Under WARN, covered employers must provide at least 60 days' advance notice of a mass layoff or plant closing. However, exceptions to the notice requirements exist for unforeseeable business circumstances and natural disasters, such as the COVID-19 pandemic.

10. If a company closes or goes bankrupt and there is no health plan, is an employee eligible for COBRA?

No. If there is no health plan, then there is no entitlement to COBRA.

11. If an employee's employment is terminated, is the employee entitled to severance pay?

Severance pay is pay offered by an employer to an employee, usually when the employee has been terminated without cause as part of, by way of example, a mass lay off.

There is currently no law in Florida requiring an employer to pay an employee severance pay. In the absence of an employment agreement mandating severance pay at the time of a termination or a policy providing for such payments, the employee is not entitled to the payment of severance pay.

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