Employment law makes dramatic shifts

More than a decade has passed since the mass layoffs of the 2008 financial crisis. In that time, unemployment has fallen to record lows in many parts of the country, especially Florida. 

But with the arrival of the coronavirus pandemic, the good times — for now — have come to an end and many employers, particularly in the hard-hit tourism and hospitality sector, have let go of large portions of their workforce, have employees who work from home or grant them paid time off to care for quarantined family members or children whose schools have shuttered in the wake of the outbreak. 

‘You have things like school closures that are covered, so it really is much more broad than paid sick leave.’ Alicia Koepke, shareholder at Trenam Law in Tampa

Alicia Koepke, an employment law specialist and shareholder at Trenam Law in Tampa, says employers dealing with coronavirus-related layoffs and time-off requests need to be aware of new rules and regulations that stem from the federal Families First Coronavirus Response Act (FFCRA). It was signed into law March 18, goes into effect April 1 and will remain in place until the end of the calendar year. 

FFCRA, Koepke explains, expands on the Family and Medical Leave Act (FMLA), first passed in 1993, which normally applies only to employers with 50 or more employees.

“The first part of [FFCRA] is a new set of circumstances in which employers with less than 500 employees have to provide FMLA,” Koepke says. “It's very important to know that it's limited to employees who are unable to work, even remotely, because they have to care for a minor child whose school or daycare closed relating to the coronavirus.”

Of course, most employers, regardless of size, offer some sort of paid time off (PTO) policy that governs vacation days, sick days and other leave from work. They are still expected to adhere to such policies, Koepke says, but when offering time off under FFCRA, it gets a bit complicated. 

According to the FFCRA, the first 10 days of leave can be unpaid; however, Koepke explains, employees can draw from unused PTO, if they wish, to get paid for some or all of the time off. After 10 days, FFCRA says employees must continue to be compensated at no less than two-thirds of their normal rate of pay, with a cap of $200 per day or an aggregate amount of $10,000. 

“The FFCRA provides the very first paid sick leave act under federal law,” Koepke says. “Florida doesn't have a paid sick leave requirement for private employers, but now through the FFCRA,” it does. 

Under FFCRA, Koepke adds, full-time employees must be granted up to 80 hours of paid time off. Part-time workers receive an amount of paid sick leave equivalent to the average amount of time they would work during a two-week period. 

“But an employer cannot require employees to use other paid sick leave that they have before they use the FFCRA response, basically,” Koepke says. “You have things like school closures that are covered, so it really is much more broad than paid sick leave.” 

If an employer faces the difficult task of laying off employees, such actions must still be carried out in accordance with Worker Adjustment and Retraining Notification (WARN) Act, a 1988 federal labor law that requires businesses that employ more than 100 people to give workers 60 days’ advance notice of facility closures and/or mass layoffs.  

Employers also need to comply with FMLA regulations in regard to layoffs, Koepke adds, regardless of whether the FFCRA applies to them. 

“They will want to be sure that if they do lay off, that they can show that the layoff was not done because someone requested FMLA leave or any other protected legal right,” she says, “but instead it was done as a necessity and in an objective way that shows that they would not have had the right to return to work and would have been laid off regardless of utilizing [FMLA] protection.”

(This article has been updated to clarify that the Family and Medical Leave Act normally applies to businesses with 50 or more employees.)