Category Archives: Human Resources

EMPLOYMENT LAW UPDATE: Application of the Religious Exemption in the Era of Employer-Mandated Vaccinations

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As most of you know, President Biden recently outlined a multi-prong strategy designed to curb the current wave of the COVID virus.  His plan includes the following points relevant to private employers:

•          All employers with 100 or more employees must implement vaccine mandates for their workforce or require workers who remain unvaccinated produce a negative test result on at least a weekly basis before coming to work.   OSHA is soon expected to issue an Emergency Temporary Standard (ETS) to implement this requirement and clarify which private employers are affected, i.e., how 100 employees should be counted.  More than likely, the 100-employee determination will apply to the employer’s total number of employees rather than the number of employees at each worksite.  The ETS should also require employers with 100+ employees to provide paid time off to those employees to get vaccinated or need time off to recover after vaccination. 

•          Mandatory vaccinations for all healthcare workers in healthcare facilities receiving Medicare or Medicaid reimbursement, including but not limited to hospitals, ambulatory surgical settings, and home health care agencies.

•          Employers with vaccine mandates must consider accommodating only those employees with medical or religious exemptions, and employees who do not qualify for a medical or religious exemption may be subject to termination.  Similarly, if an employer permits testing in lieu of vaccinations, an employee who refuses to test may also be terminated unless the employee requires an accommodation relating to testing.

To be clear, an employee requesting an exemption from the employer’s vaccination mandate due to a personal preference – rather than a medical or religious reason – is not protected from termination.

Religious exemptions or accommodations will surely increase in light of President Biden’s mandate, and since these requests are much more nuanced than medical exemptions, here is what employers should focus on in assessing these requests.

The threshold inquiry for any request for a religious accommodation is whether the employee has a “sincerely held religious belief, practice, or observance” that prevents the employee from receiving the COVID vaccine. Sincerely held religious beliefs include “moral or ethical beliefs as to what is right and wrong and held with the strength of traditional religious views.”

Equal Employment Opportunity Commission (EEOC) guidance states that employers should accept an employee’s claim of a sincerely held religious belief unless the employer has an objective basis to deny the exemption. The EEOC has identified four factors that may create doubt in an employer’s mind as to the sincerity of the employee’s religious belief, which include the following:

  1. Whether the employee has acted in a way that is inconsistent with the claimed belief;
  2. Whether the employee is seeking a benefit or an exception that is likely to be sought for non-religious reasons;
  3. Whether the timing of the request is questionable, e.g., does the request follows closely on the employee’s request for the same benefit for a different reason; and
  4. Whether the employer has other (secular) reasons to believe the employee is seeking the exemption.

Employers with an objective basis to question the employee’s stated religious belief should request additional information from the employee before deciding whether to grant the requested accommodation.

Even if the employer finds there is a valid religious reason behind the employee’s requested exemption, EEOC guidance (and other applicable precedent) further provides that an employer need not provide an accommodation if doing so would cause “undue hardship” to the employer.  An accommodation may cause undue hardship if it is costly, compromises workplace safety, decreases workplace efficiency, infringes on the rights of other employees, or requires other employees to do more than their share of potentially hazardous or burdensome work.  For example, an employer may be able to show that accommodations (such as regular testing, creating a separate area in which the employee can work, purchasing of personal protective equipment, etc.) are too costly or burdensome or that an unvaccinated employee can compromise the safety of its workforce and patrons.  The law does not require that an employee’s religious beliefs be prioritized over workplace safety.

In all accommodation cases, the employer must engage in an interactive dialogue with the employee requesting relief and evaluate each situation on a case-by-case basis.  Employers are encouraged to seek legal counsel before denying a request for accommodation and also consider implementing, reviewing or updating any policies and procedures for handling requests for both religious and medical accommodations.

If you have any questions about the implementation of vaccine mandates or other employment-related issues, please feel free to Ellen using the following contact information.

Ellen M. Leibovitch

Board Certified Labor & Employment Lawyer

ASSOULINE & BERLOWE, P.A.

2101 N.W. Corporate Blvd., Suite 410

Boca Raton, Florida 33431

Main: 561-361-6566
Direct: 561-948-2479

[Bio] [V-card] [Directions]

eml@assoulineberlowe.com

www.assoulineberlowe.com

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HAPPY 17th ANNIVERSARY to ASSOULINE & BERLOWE!

MIAMI – Assouline & Berlowe, P.A., The Business Law Firm, is pleased to announce that today it is celebrating its 17th Anniversary.

Started on February 10, 2003, through humble beginnings, in a small subleased space in Coral Gables, Assouline & Berlowe has weathered the many business climate changes and challenges of the past two decades.

Assouline & Berlowe is proud of its contributions to its communities in the tri-county area, as part of its presence with offices in Miami, Ft. Lauderdale/Dania Beach, and Boca Raton.  Assouline & Berlowe regularly supports both its legal community and numerous charitable organizations alike.

Assouline & Berlowe is strategically positioned to continue its expansion as a strong player in South Florida’s international business environment.

To all those that we have worked with in the past and to those we hope to work with in the future, we say thank you.

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PARALEGAL SEMINAR – OCT. 19, 2019 – South Florida Paralegal Association

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Assouline & Berlowe Litigation Partner Peter E. Berlowe is one of the guest speakers at this year’s Annual Fall Seminar for the the South Florida Paralegal Association. 

On October 19, 2019 at the Florida International University – College of Law

Located at Rafael Diaz Balart Hall (RDB) Room 2008, 11200 SW 8th Street, Miami, FL 33199

Offering 6.5 Credits

Including 1  Ethics Credit and 0.5 Technology Credit

With Keynote Speaker

Mercedes M. Prieto, Esq., Clerk of the Third District Court of Appeal on Introduction to Legal Research and Legal Memoranda Writing

and guest speakers


 Peter E. Berlowe, Esq. of Assouline & Berlowe, P.A. on Analysis of an Injurious Falsehood Case and the Paralegal’s Role

 Marc Hurwitz of Crossroads Investigations on A Former CIA Officer’s Guide to Investigations for the Divorce Process

Bianca Moreiras of Bianca Moreiras & Associates on Time Management, Goal Setting and Taking Action

 Felice Solomon of Solomon Search Group on How Paralegals Can Deal With Seven Personality Types in the Workplace

and

 Valencia N. Poitier, Esq. of American Integrity Insurance of Florida, Inc. on HIPPA: Accountability, Ethics and Evidence – Avoiding the Pitfalls of Suppression and Lack of Foundation

The cost to attend the event is:

Students: $25 

Member & Affiliate Members: $55

Non-Members: $65

Continental breakfast & hot lunch will be provided Your Savory Fare

For more information regarding the event, please contact SFPA Vice-President Summer Marshall by email at smarshallfrp@gmail.com


For more information on how to sponsor this event, please contact

Sadena Blatt Miropol by email at sb0929@gmail.com

This seminar meets the requirements of the NALA Certifying Board for Paralegals for continuing legal education credit required to maintain the CP (Certified Paralegal) credential.

To recap:

The South Florida Paralegal Association is proud to present its 2019 Annual Fall Seminar on October 19, 2019 at the Florida International University – College of Law, located at Rafael Diaz Balart Hall (RDB), RDB 2008, 11200 SW 8th Street, Miami, FL 33199

Celebrating 40 Years of Commitment to the Legal Community

Offering 6.5 Credits (including .5 Ethics Credit and 1 Technology Credit)

With keynote speaker:
Mercedes M. Prieto, Esq., Clerk of the Third District Court of Appeal

And guest speakers:
Peter E. Berlowe, Esq. of Assouline & Berlowe, P.A.,
Marc Hurwitz of Crossroads Investigations,
Felice Solomon of Solomon Search Group,
Valencia N Poitier, Esq. of American Integrity Insurance of Florida, Inc., and
Bianca Moreiras of Bianca Moreiras & Associates

The cost to attend the event is:
Students: $25
Member & Affiliate Members: $55
Non-Members: $65

Continental breakfast & hot lunch will be provided Your Savory Fare

For more information regarding the event, please contact SFPA Vice-President Summer Marshall by email at smarshallfrp@gmail.com

For more information on how to sponsor this event, please contact Sadena Blatt Miropol by email at sb0929@gmail.com

This seminar meets the requirements of the NALA Certifying Board for Paralegals for continuing legal education credit required to maintain the CP (Certified Paralegal) credential.

All content © SFPA 2019.

South Florida Paralegal Association, Inc. is a non-profit organization. 123 S.E. 3rd Avenue, #367, Miami, Florida 33131.

http://sfpa.info/event-3565682

 

 

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LABOR LAW UPDATE – Exempt Employee Thresholds

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It is Finally Here!

Over the years, the U.S. Department of Labor (DOL) has attempted to change certain rules applicable to implementation of the Fair Labor Standards Act (FLSA) and increase the salary threshold for exempt employees from $455 per week (the level it has been at since 2004).

Many may recall that a rule to increase the salary thresholds for exemptions was first enjoined and subsequently invalidated by the U.S. District Court for the Eastern District of Texas in 2016.   A year later, the U.S. Court of Appeals for the Fifth Circuit has held the appeal in abeyance pending further DOL rulemaking regarding a revised salary threshold.  In other words, the DOL has consistently enforced the 2004 salary level for the last 15 years.

However, the DOL has now finally announced a final rule which is expected to make 1.3 million American workers eligible for overtime pay under the FLSA.  In a nutshell, this rule, which will go into effect on January 1, 2020, accomplishes three primary objectives:

First, the rule updates the earnings thresholds – from $455 to $684 per week – necessary to exempt certain white collar positions, i.e., executive, administrative and professional employees, from the FLSA’s minimum wage and overtime pay requirements.

Second, the new rule will allow employers to meet up to 10% of the new salary level from nondiscretionary bonuses and incentive payments (including commissions).

Third, the rule will increase the salary requirements for the “highly compensated employees (HCE)” exemption from $100,000 to $107,432 per year.

Again, please note that the final rule will be effective on January 1, 2020.

Additional information about the final rule is available at www.dol.gov/whd/overtime2019.  Please feel free to contact me if you have any questions.

Ellen M. Leibovitch, Head of Labor & Employment Practice – Boca Raton Office and can be reached by email at eml@assoulineberlowe.com or by Telephone: 561-361-6566.

 

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EMPLOYERS: Department of Labor Issued its Final Rule on Overtime Pay under FLSA – EFFECTIVE JANUARY 1, 2020

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Board Certified Labor & Employment Partner Ellen Leibovitch and Litigation Partner Eric Assouline, of Assouline & Berlowe

Human Resource Departments should take note, the overtime rules have now been clarified by the Department of Labor.

Over the years, U.S. Department of Labor (DOL) has attempted to change certain rules applicable to implementation of the Fair Labor Standards Act (FLSA) and increase the salary threshold for exempt employees from $455 per week (the level it has been at since 2004).

Many may recall that a rule to increase the salary thresholds for exemptions was first enjoined and subsequently invalidated by the U.S. District Court for the Eastern District of Texas in 2016.

A year later, the U.S. Court of Appeals for the Fifth Circuit held the appeal in abeyance pending further DOL rulemaking regarding a revised salary threshold.  In other words, the DOL has consistently enforced the 2004 salary level for the last 15 years.

The DOL has now announced a final rule which is expected to make 1.3 million American workers eligible for overtime pay under the FLSA.

In a nutshell, the rule, which goes into effect on January 1, 2020, accomplishes three primary objectives:

First, the rule updates the earnings thresholds – from $455 to $684 per week – necessary to exempt certain white collar positions, i.e., executive, administrative and professional employees, from the FLSA’s minimum wage and overtime pay requirements.

Second, the new rule will allow employers to meet up to 10% of the new salary level from nondiscretionary bonuses and incentive payments (including commissions).

Third, the rule will increase the salary requirements for the “highly compensated employees (HCE)” exemption from $100,000 to $107,432 per year.

Again, please note that the final rule will be effective on January 1, 2020.

Additional information about the final rule is available at www.dol.gov/whd/overtime2019.  Please feel free to contact me if you have any questions.

Ellen M. Leibovitch

Board Certified Labor & Employment Lawyer

ASSOULINE & BERLOWE, P.A.

2300 Glades Road

East Tower – Suite 135

Boca Raton, Florida 33431

Main: 561-361-6566

Direct: 561-948-2479

Assouline & Berlowe SuperLawyers 2019

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