Tag Archives: FMLA Family Medical Leave Act Litigation Labor Employment Department of Labor

URGENT EMPLOYMENT LAW UPDATE – FAMILIES FIRST CORONAVIRUS RESPONSE ACT

The Families First Coronavirus Response Act (“Act”) was signed into law on March 18, 2020, takes effect on April 2, 2020 and expires on December 31, 2020.  This email briefly summarizes those aspects of the Act applicable to employers with fewer than 500 employees.

EMERGENCY FAMILY & MEDICAL LEAVE

The Act amends the Family & Medical Leave Act (“FMLA”) by providing 12 weeks of job-protected leave for employees who have been on the job for at least 30 days, as follows:

  • The emergency leave must be for an employee to quarantine due to exposure to or symptoms of coronavirus, to care for an at-risk family member who is quarantined due to exposure to or symptoms of coronavirus, or care for a child if the child’s school is closed or a child-care provided is unavailable due to the virus.
  • The first ten (10) days of the leave may be unpaid (though the employee may elect to substitute any accrued vacation leave, personal leave, or medical or sick leave for unpaid leave), but the rest of the leave must be paid as follows: two (2) weeks of fully paid leave, and the remaining leave paid at two-thirds (2/3) the employee’s usual pay.
  • Paid leave shall not exceed $200 per day and $10,000 in the aggregate.
  • While employees taking this leave have the right to be reinstated in a position with equivalent pay and benefits, employers with fewer than 25 employees do not have to reinstate an employee if the position held by the employee when the leave commenced does not exist due to economic conditions or changes of operation that were caused by the public health emergency.
  • Employees who are emergency responders or who work for health care providers may not be eligible for emergency FMLA.
  • Employers with less than 50 employees can be exempted from the Act’s requirements when the imposition of such requirements would jeopardize the viability of the business as a going concern.

EMERGENCY PAID SICK LEAVE

The Act also allows for paid sick leave for employees (the “Emergency Paid Sick Leave Act”) who are unable to work due to: 

  1. A governmental quarantine or isolation order related to COVID-19;
  2. Advice from a health care provider to self-quarantine due to concerns related to COVID-19;
  3. The employee experiencing symptoms of coronavirus and seeking a medical diagnosis;
  4. A need to care for or assist an individual who is subject to a governmental quarantine or isolation order related to COVID-19 or has been advised by a health care provider to self-quarantine due to concerns related to COVID-19; or
  5. A need to care for a child whose school or place of childcare is closed or unavailable due to coronavirus.

Other highlights of the Emergency Paid Sick Leave Act include the following:

  • Employers with fewer than 500 employees are required to provide up to 80 hours of paid sick leave for full time employees.  Part-time employees can receive an amount equal to the to the number of hours the employee works on average over a two-week period. 
  • Employers may not require that employees use other paid leave time prior to using emergency paid sick time. 
  • Employers may not require employees who request paid sick leave to find a replacement to cover for their scheduled hours as a condition to grant the request.
  • Sick time will not carry over after 2020.
  • As with emergency FMLA, employers of health care providers and emergency responders may elect to exclude such employees from the application of the paid sick leave; and employers with less than 50 employees can be exempted from the Act’s requirements.
  • This section of the Act makes it unlawful for an employer to discharge, discipline, or in any other manner discriminate against any employee (1) who takes leave in accordance with this Act, or (2) has filed any complaint or instituted or caused to be instituted any proceeding under or related to this Act (including a proceeding that seeks enforcement of this Act), or has testified or is about to testify in any such proceeding. 
  • An employer who fails to provide sick leave as required under the Act shall (1) be considered to have failed to pay minimum wages in violation of section 6 of the Fair Labor Standards Act of 1938 and (2) be subject to the penalties described thereunder with respect to such violation, including liquidated (double) damages for willful violations.
  • As with other labor law posters, employers will be required to post notice of the Emergency Paid Sick Leave Act (to be provided by the Secretary of Labor) in a conspicuous place on the employer’s premises within seven (7) days from enactment.

TAX CREDITS

Employers who pay employees for emergency FMLA leave or sick leave under the Act are entitled to refundable tax credit taken against the employer’s share of certain employment taxes. The credits are limited up to $200 per day for up to 10 days for each employee who takes paid sick leave, but if the sick leave was for the employee’s own covered quarantine or isolation or for the time for the employee to receive his or her own diagnosis, the credit is limited to up to $511 per day. 

CONCLUSION 

This time of crisis requires everyone to be flexible – employers and employees – and employers must definitely update their time off and sickness policies to reflect the  changes imposed by the Act.  Employers who are able to allow employees to work from home and remain productive, should do so.  Employees who cannot work remotely and who do not qualify for emergency FMLA or sick leave should continue to work for as long as local ordinances do not require sheltering in place and so long as the employer has work for the employee.  The bigger issue, and one which Congress may next have to address, is the slowing down of commerce and the lack of work in many sectors of the business community.  More on that to follow as the matter winds its way through the halls of government.

As always, please stay safe and take care of yourselves and your families.

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

[Bio] [V-card] [Directions]

eml@assoulineberlowe.com

www.assoulineberlowe.com


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Breaking News! Federal Court Puts Home Health Care Rule Changes on Hold!

laborAssouline & Berlowe, P.A. Board Certified Partner Ellen Leibovitch recently spoke at a seminary regarding important changes to the Fair Labor Standards Act (FLSA) that were set to take effect on January 1, 2015.  These changes are relevant to third party agencies who employ companions and live-in domestic service employees.

After this seminar, on December 22, 2014, the United States District Court for the District of Columbia – in Home Care Association of America v. Weil, 1:14-cv-00967-RJL – struck down significant portions of the new rules which were set to go into effect on January 1, 2015.  As Mrs. Leibovitch spoke about at the seminar , the new regulations would have made the long-standing exemptions to the FLSA’s minimum wage and overtime requirements for companions and live-in domestic employees inapplicable to third-party employers (like home health care agencies).  The federal court determined that the Department of Labor (DOL) exceeded its authority and improperly sought to impose obligations on employers in violation of the plain language of the FLSA.

What does this mean to you and your businesses?  While the decision was a victory for many in the home health care industry, the court did not strike down the entire regulation, including the new definition of “companionship.”  What is clear from the decision is that the new rules will NOT be applied to live-in domestic care workers who reside in the private household where they are employed.  These workers will NOT, as the DOL had planned, be protected by the FLSA’s  overtime requirements, although the minimum wage requirements and the record-keeping requirements will remain enforceable as of January 1, 2015.

As for companions (not live-ins), the rules are still somewhat unclear.  It may take days or weeks to get a better handle on the situation, so please be on alert for further developments.  While it would appear that the rush to comply with the new rules has come to a grinding halt, everyone should remain proactive and ready for what happens next.  Mrs. Leibovitch will attempt to stay on the forefront and provide information as gathered.

Ellen M. Leibovitch is a Florida Bar Board Certified Labor & Employment lawyer and head of the firm’s labor and employment practice.  If Mrs. Leibovitch can be of any assistance to you regarding these rule changes, please do not hesitate to contact her using the information below.

Ellen M. Leibovitch

Florida Board Certified Labor and Employment Attorney

ASSOULINE & BERLOWE, P.A.

1801 N. Military Trail, Suite 160

Boca Raton, Florida 33431

Main:  (561) 361-6566

Fax: (561) 361-6466

Email: EML@assoulineberlowe.com

http://www.assoulineberlowe.com/

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Home Health Care – Labor Law Changes Take Effect Jan. 1, 2015

Home Health Care

Significant changes in the law become effective on January 1, 2015

January 1, 2015 marks the end of the long-standing “companionship exemption” for agency-employed direct care workers under the Fair Labor Standards Act (FLSA).  Most importantly, the death of the exemption means that companions and live-in domestic workers who were previously deemed “exempt” from the overtime requirements of the FLSA will now be eligible for significantly higher wages, i.e., time and one-half of a worker’s regular rate of pay for all hours over 40 worked in a week.  Conversely, this means that businesses employing such workers need to adjust their business models to ensure these workers are properly paid for all hours worked.

In adopting these new rules, the Department of Labor pulled no punches when it noted, “[T]he primary effect [of the changes] is the transfer of income from home care agencies. . . to direct care workers.”

Undoubtedly, the changes in the law will expose home care agencies to significant wage and hour liability unless they have prepared in advance to comply with the FLSA’s minimum wage, overtime and record-keeping requirements.  Among other things, the changes in the law will require, among other things, the following:

  • Overtime pay for all hours over 40 worked in a week;
  • Payment for sleep time or other breaks unless the employee is completely relieved of all duties during these times
  • Payment for meal periods when the employee is eating with and available to assist the employer’s customer
  • Payment for off-duty time if the employee is considered “on call” on the employer’s premises so that the employee cannot use the time effectively for personal reasons
  • Payment for travel time from one worksite to another during the day

In order to assist business which employ these workers to comply with these changes, Assouline & Berlowe, P.A., is hosting a FREE breakfast seminar on December 17, 2014 from 8:30-10:00 a.m. at Lakeside Terrace, 7800 Glades Road, in Boca Raton.  During the seminar, the changes in the law will be outlined and a discussion had on what businesses need to do to become compliant with the FLSA’s requirements.

laborEllen M. Leibovitch, a Florida Bar Board Certified Labor & Employment lawyer and head of the firm’s labor and employment practice, will explain to whom the new laws apply, how businesses will be impacted by the changes and recommendations of best practices for compliance. Assisting Ellen in the presentation will be Michael Seifert and Wendra Johnson, SPHR, of CBIZ Payroll, who will highlight the time, payroll and other records that employers need to retain in order to be compliant with the law as of January 1.  Important to remember is that an employer’s failure to maintain proper records is, in itself, a violation of the FLSA.

If you are interested in learning more about the changes in the law applicable to businesses employing direct care workers (companions), please RSVP today and plan to attend this event.  While attendance is FREE, you must be registered in advance to attend.  Please send your response to rsvp@assoulineberlowe.com.  If you have any questions, call 561-361-6566.

Ellen M. Leibovitch

Florida Board Certified Labor and Employment Attorney

ASSOULINE & BERLOWE, P.A.

1801 N. Military Trail, Suite 160

Boca Raton, Florida 33431

Main:  (561) 361-6566

Fax: (561) 361-6466

Email: EML@assoulineberlowe.com

http://www.assoulineberlowe.com/

Intellectual Property, Labor & Employment Law, Bankruptcy, Commercial Litigation, and Corporate Law

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Family Medical Leave Act (FMLA) Guidelines Issued by Department of Labor

The U.S. Department of Labor’s (DOL) Wage and Hour Division (WHD) has released a 16-page guide to the Family and Medical Leave Act (FMLA) designed to make the law more accessible to employees. The publication, titled “Need Time? The Employee’s Guide to The Family and Medical Leave Act,” provides a basic overview of the FMLA. Through a combination of text, flow charts, and examples, it answers common questions that employees may have about their rights under the Act. The guide is available on the DOL’s website at www.dol.gov/whd/fmla/employeeguide.pdf.

If you need any information about labor & employment law, please do not hesitate to contact:

Ellen M. Leibovitch

Board Certified Labor & Employment Lawyer

ASSOULINE & BERLOWE, P.A.

2700 N. Military Trail, Suite 150

Boca Raton, Florida33431

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

Fax: 561-361-6466

[Bio] [V-card] [Directions]

eml@assoulineberlowe.com

www.assoulineberlowe.com

Intellectual Property, Labor & Employment Law, Bankruptcy, Commercial Litigation, and Corporate Law

Miami • Ft.Lauderdale • Boca Raton 

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