Report on PEO in Florida is Submitted

The report this report issued by The Office of Program Policy Analysis and Government Accountability (“OPPAGA”) in Florida, is clearly one commenced with negative overtones and questionable timing. As Senate Bill 820 looms in the background, this appears to be the “made for order” white paper to justify it. It is unfortunate that the issue of uninsured employers has been misconstrued with some sort of “gap in coverage” in workers’ compensation if a Professional Employer Organization is utilized. This is just not the case. A gap in coverage exists when a business does not buy insurance for its employees and that should be the focus of fixing the root issue of the uninsured employee.

The scope of the report is:

  1. “What is the relationship between PEO’s and insurance carriers, and how might workers’ compensation coverage differ for businesses that use PEO’s?”
  2. “How can the relationship between a PEO and its client companies lead to a workers’ compensation coverage gap?”
  3. “What has been the history of PEO-related workers’ compensation insurance carrier insolvencies in Florida?”
  4. “Can PEO’s offering workers’ compensation coverage have an effect on the workers’ compensation insurance market, including premiums for other businesses?”
  5. How have other states addressed PEO regulation and PEO-related workers’ compensation insurance coverage gaps?”
  6. What options could the legislature consider to address PEO regulation and PEO-related workers’ compensation insurance coverage gaps?”

According to the Director of the Florida Association of Professional Employer Organizations Robert Skrob:

“Since the creation of the workers’ compensation system, employers fraudulently paying employees cash under the table has been a problem. That why the law  holds general contractors responsible for what happens on their job sites.  Shifting that responsibility away from general contractors would lead to more workers’ compensation fraud by letting general contractors who don’t adequately oversee their worksites avoid responsibility.

Contractors who cheat the system by not providing workers’ compensation coverage for all people who work for them put those workers in danger. The Florida Legislature should eliminate the financial motivation and incentives built into the system that encourage workers compensation fraud in construction by increasing the number of jobsite investigations to keep up with the growth in the construction industry, and by holding the cheaters responsible.

There are a number of proposed bills which would implement some of the recommendations within this report. Together with NAPEO we will fight the proposals contained within this report.”

We could not agree more and look forward to helping any way possible to address the issue of the occupational uninsured. Not buying insurance for your employees is a crime.

From an insurance perspective, the real issue – taking care of the claimant, is addressed in most states through the administration of an “Office of Uninsured Employers”. If your employer did not buy workers’ compensation, you go to the State, the claimant’s benefits are funded, the employer is investigated/penalized and the fund is replenished. In Florida, if you are hurt and your employer has not purchased insurance, your primary recourse is to contact a personal injury attorney. “It’s free”, until their contingengies are triggered on what is already rightfully due tohe claimant. This is how it works in Florida in regard to uninsured employees of uninsured employers regardless of a PEO being involved or not.

We will be reviewing the OPPAGA report in detail and provide additional insight on it before the weekend.

How Can There Be a Gap in Coverage?

…if coverage does not exist in the first place!

We have argued appropriately that coverage cannot exist based on a lack of insurable interest of the non co-employed employee. Not co-employment, not who was or was not payrolled, someone in the system knowingly committed fraud or else coverage would exist. This is not a “gap”, it is “black and white” in terms of coverage being purchased/provided or not.  The beauty of the workers’ compensation system is “The Great Tradeoff” – if you as the employer buy workers’ compensation (wc), you are protected from suit. Said simply, pay the wc insurance premiums and the employee base will be taken care of to the letter of the law.  In all States and DC (except TX, OK and NJ have opt out provisions), workers’ compensation is a mandatory purchase at certain employee counts (4 + typically).  There is no excuse to be ignorant of the need for workers’ compensation nor to pay the premiums necessary to ensure the proper medical and lost time payments due to an injured worker.  In all States, penalties and misdemeanors/ felonies follow with the lack of purchase of wc. 

In NO state is an industry group targeted as a proposed safety net to those that have failed to purchase insurance and committed fraud.  Instead, the fraudsters have a safety net to take the heat off them for not purchasing wc and doing the right thing in the first place. Since all states manage workers’ compensation differently with their own unique rules and rate sets, it falls upon each State to manage the occupational accident and illness exposure of its citizens.

Every state has some form of “subsequent” or “second injury” fund to make sure the cost of employers to hire prior workers’ comp claimants is offset and affordable.  This form of labor umbrella allows for employees to find gainful employment without putting their employers at increased financial risk based on prior events/claims.

Thirty-nine states/district out of 51 have what is generally known as an “Uninsured Employer Fund” (UEF).  In these states, it is all about making sure the injured worker(s) get treatment and benefits first, with the responsibility of the lack of insurance investigated at the same time with the appropriate parties.  The employer(s) whom were responsible for not buying insurance are held accountable, and most importantly, the claimant gets the benefits they deserve without delay and hopefully litigation.

The following 12 States do not have a UEF in order of population:

  • Texas (opt outs allowed)
  • Florida
  • Georgia
  • North Carolina
  • Indiana
  • Alabama
  • Louisiana
  • Iowa
  • Mississippi
  • Arkansas
  • Nebraska
  • Vermont

In these states, for the innocent claimants that have unscrupulous employers that do not wish to purchase workers’ compensation, there is little recourse outside of litigation.  

Not buying wc is fraud. Go after the perpetrators of the frauds and allow for a safety net for those that should matter the most – those the system is built to serve – the claimants.  An uninsured employer fund makes certain the Florida worker is covered, with the bill to be determined post-investigation.

It should be noted that either the Department of Labor or Department of Insurance of most UEF states are the governing authority and therefore something new would not need to be created.  A few states DCBS’ also handle.

Managing COVID-19 Vaccine Policies

THIS ARTICLE IS BEING REPOSTED BY LIBERTATE INSURANCES JAMES BUSCARINI. THE ORIGINAL CONTENT WAS WRITTEN IN THE FEBRUARY 2021 EDITION OF RISK MANAGEMENT MAGAZINE. ARTICLE WRITTEN BY JODY MCLEOD, ESQUIRE AND GARY PEARCE

As COVID-19 vaccines become more available and companies return to the office, employers may want to protect their workforce by mandating vaccinations. However, it is essential that they keep in mind certain risks and how to mitigate them, including the legal limits of what they can ask of employees.

When approaching mandatory vaccinations for workers, the legal rules are reasonably established. Employers can mandate vaccinations as long as they have processes to deal with exceptions. The key exceptions concern medical disabilities covered by the Americans with Disabilities Act (ADA), and bona fide religious objections covered by Title VII of the Civil Rights Act of 1964. Because a vaccination is not a medical examination, it does not inherently trigger certain aspects of the ADA.  But beware of violating ADA obligations in the course of asking pre-screening questions or securing proof of vaccinations. Unvaccinated employees—particularly those who refuse or are unable to take a vaccine for medical or religious reasons—may be excluded from the workplace if they pose a direct threat, subject to ADA and Title VII ­obligations to pursue a reasonable accommodation. The ADA accommodation standard is somewhat more favorable to the employee than the Title VII standard. Determining whether an unvaccinated employee poses a direct threat requires a fact-specific determination, considering the duration of risk, the nature and severity of potential harm, and the likelihood and imminence of potential harm.

Excluding an employee from a workplace because they pose a direct threat does not automatically mean termination is justified. The employer first needs to determine whether there is a feasible alternative arrangement that would not impose undue hardship, such as remote work. There remains a general duty under the federal Occupational Safety and Health Act (OSHA) to provide a workplace free from serious recognized hazards, and COVID-19 exposure will typically qualify. Of course, organizations that expose the general public to COVID-19 risk being sued.

If a company imposes a vaccination mandate, it must consistently administer exception processes regarding reasonable medical accommodations and religious objections.  It will need to understand what constitutes business necessity, and must be able to identify reasonable accommodations on a fact-specific, individualized basis. The company will need to decide whether to assume the risks and obligations arising from self-administering vaccinations, or instead depend on collecting evidence of third-party administration. Lastly, it will need to minimize the prevalence of medical inquiries—including medical details unexpectedly proffered by the employee—and preserve the confidentiality of any protected information that may thereby be received.

Other potential issues include whether there is a union contract that the company must consider, or whether any state or local laws forbid mandatory vaccination policies.  

Risks of Vaccination Mandates

If an employer requires vaccinations, it must administer the mandate consistently and consider whether the additional risk is justified. If the employer imposes the mandate for only certain categories (e.g., for customer-facing staff but not home-based workers), it will need a rational basis for its determinations. Also, a mandate could bring any adverse reactions into the realm of compensability for workers compensation, and time spent receiving a mandatory vaccine is most likely compensable for purposes of wage and hour compliance. Data privacy and retention of medical records also need to be considered in the record-keeping process as the relevant regulations and laws are quite demanding. If the company provides financial incentives to encourage compliance, income may need to be reported and taxes owed as well.

Changing and Varying Rules

It was not until December 2020 that the Equal Employment Opportunity Commission issued substantial additional guidance regarding COVID-19 obligations under prominent employment laws. As of this writing, OSHA has yet to issue any rules specific to COVID-19, but the Biden administration is expected to issue a broad rule in the coming months. States and municipalities issue executive orders and ordinances at a pace that only specialists can keep up with. Even if all the written rules are known, there is no assurance that they will be administered in alignment with what governed parties might expect. “Guidance” may become a de-facto obligation.

For all these reasons, companies cannot base their protection and recovery program solely on compliance with current legal requirements. Nor can a static “one and done” determination be sufficient. In light of all these issues, duties and uncertainties, companies should determine whether a vaccine mandate is an effective use of their administrative resources.

Business Expectations

Requiring vaccinations does not mean employers can forego the rest of their COVID-19 management protocol. Employers need to keep in mind that there is no proof that vaccinated people cannot transmit the virus to others, the vaccination seems likely to be less than 100% effective, and some people either will be unable to get the vaccine or at least will not yet have received it. Worry about a new pandemic episode will persist for years.

Many employees likely regard safety as the highest organizational priority and will look to their employer to provide reliable information about COVID-19 risk management. Failure by the organization to respect these new expectations could trigger negative social media reactions, unwanted attention from plaintiffs’ attorneys, and difficulty attracting and retaining valuable talent. While this may be a threat to some managers, it is an unprecedented opportunity to strengthen the bond of trust between employee and employer. 

As a practical matter, legal regulations tend to react to changing circumstances.  This makes it likely that any rescinding of temporary standards will occur in a somewhat tardy fashion. To date, the volume of litigation related to COVID-19 has been less than feared. However, do not take too much comfort in this. Courts have been shut down, causal connections are likely to be better understood as experience accumulates, and plaintiffs’ attorneys may surmise that juries will be more sympathetic after the worst of the crisis has passed. 

Employees Who Refuse

Surveys show that a significant portion of the population would choose not to take a COVID-19 vaccine. Some may eventually be persuaded, while others have deeper objections. Some may be uncomfortable as long as deployment is under emergency use authorizations. This unease reinforces the need to be collaborative in pandemic management and transition planning, and to communicate the reasoning behind critical decisions or policies.

The entire workforce will never agree on how best to emerge from the pandemic. Although communication is important and stakeholder feedback is necessary, securing unanimity is unrealistic. On the other hand, if a significant number of workers refuse to accept a vaccine, even in the face of an employer mandate, is the organization prepared to redeploy or replace these workers?

There is no risk-free path to a post-COVID environment. Employers must continuously assess conditions and be prepared to act promptly despite incomplete information, changing circumstances and inherent uncertainties.

Where Does My PPP Funding Leave Me?

The U.S. Chamber of Commerce has useful guidance in regard to the Paycheck Protection Loans under the Paycheck Protection Program (PPP).  Weighing on most of us is how these loans are going to impact our businesses long term, as the guidance from the Small Business Administration (SBA) keeps changing.

The SBA was very quick in issuing the note agreements, payment terms and interest rates on the Economic Injury Disaster Loans (EIDL), also noting that if an advance was given under these loans the advance amount would be deducted from the potential forgiveness of the PPP loan. Yes, an advance under one loan would be an offset to the portion of allowable forgiveness under another!  The EIDLs are not forgivable but they have been set up on 30 year terms; seemingly manageable.

One important thing I’ve taken away from this experience is that the PPP loans were issued and managed through the SBA approved private lenders and then backed by the SBA. This meant, after digging around on the internet, calls to our lender and calls to the SBA that the forgiveness application would be handled by the lender.  Oddly enough, it didn’t seem like our lender knew that.  After much persistence, I found that forgiveness applications were being accepted and processed for those applicants that received funding in excess of $2M.  That meant the “small-business” funding recipients, the originally intended recipients of the CARES Act would have to wait for any clarity or solace on how these funds would ultimately be of impact.

I think it’s safe to assume that we all understand the rules as they currently stand and we are admittedly thankful for the CARES Act.  The end game goal with the PPP loan is that you needed to keep staff on payroll, if you laid anyone off you needed to rehire them and overall you needed 60% of the funding to go towards payroll with the remaining funding allowed towards mortgage interest, rent and utilities.

Again, that leaves me with the question of what the overall impact to the business will be. This is where it counts!  Let’s for a moment consider that we have utilized the funding properly and within the terms of forgiveness at 100% with the EIDL advance that was received also having an impact.  We essentially received a pass for a period of time related to our payroll costs, rent, and utilities.  The expenses are still sitting on our P&L,  we have a note that will be forgiven which will ultimately end up as income, but the IRS will be limiting the deduction of these expenses from our business’ taxable income.

What does this mean?  Now is the time to pull your General Ledger and scour through your P&L line items.  Understand your normal deductible business expenses and make sure that you have items classified properly for your tax reporting.  Don’t leave this for your tax preparer to question; nobody knows your business like you do. Who in your company is responsible for credit card allocations? How many times do you use your corporate credit card and the accounting team inadvertently books those charges to meals & entertainment or distributions, when in actuality it was a corporate team building lunch related to a client account or a client meeting, i.e. business meal, marketing or travel related expenses.? Meals & entertainment are limited at 50%, be cautious as to what is classified here.  Marketing, travel and mileage are 100% deductible.

In summation, if the PPP funding was utilized within the forgivable guidelines you should be able to apply for forgiveness at 100% less the EIDL advance you’ve received. These forgiven expenditures will be unallowed deductions on your tax filing for the year so make sure your other business related expenses are classified properly to capture as many deductible expenses as possible to reduce your tax liability. Connect with your lender and identify their protocol for the forgiveness application. A Professional Employer Organization (PEO) can be immensely helpful in providing canned reporting for both the PPP application process and the allowable payroll costs under the 8 week or 24 week option under the PPP loan needed for the forgiveness application.  

If you are unsure as to whether or not a PEO makes sense for your small business, we can help you decide! Libertate Insurance Services has a client first motto and works hard to help transfer risk in your business. So whether you’re looking for a PEO or you are a PEO seeking hard-to-place markets, connect with us today. Visit our website here for more info or check out the rest of the PEO Compass blogs here.

We would love to connect with you!

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Research credits: IRS.gov, uschamber.com, sba.gov

How much time is an Employer required to give Employees under the FFCRA?

The Florida United Businesses Association (FUBA) released a great Q&A for Employers.  The quick answer is 2 weeks/80 hours, but with everything COVID, we realize that there is generally more behind the scenes.   Here is FUBA’s look into the small print. Great 2 minute read!

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FUBA COVID-19 Update: Can An Employee Get More Than 2 Weeks Of Paid Leave?

Here are the 3 most common questions we get from our small business members about paid leave under the Families First Coronavirus Response Act (FFCRA):

1) One of my employees has already used their 2 weeks/80 hours of paid FFCRA leave but now they can’t work because they have COVID-19. Do I have to give them another 2 weeks of paid leave?

No. The FFCRA requires employers give employees 2 weeks (80 hours) of paid leave only if the employee cannot work because of one of these reasons:

  1. The employee has been told to quarantine by a health care provider or by a government order.
  2. The employee has COVID-19 symptoms and is seeking a diagnosis (i.e., they are getting a COVID-19 test and are waiting on the results).
  3. The employee must stay home to care for someone who has been quarantined by a health care provider or by a government order.
  4. The employee must stay home to care for a child under 18 whose school or childcare is unavailable due to COVID-19. These employees are also eligible for an additional 10 weeks of paid leave, for a total of 12 weeks’ paid leave.

Employers are only required to give the 2 weeks paid leave one time. Once an employee has used their 2 weeks of paid leave, they don’t get another two weeks even if they meet one of the reasons above.

If one of your employees has used their 2 weeks of paid leave and then gets sick with COVID-19 or has to quarantine because they were exposed to someone with COVID-19, you can decide whether to allow the employee to take unpaid leave or to use any vacation/sick time the employee has. But you do not have to provide another 2 weeks of paid leave under the FFCRA.

The only time employees may get additional paid leave is for reason #4 above: if an employee has to stay home to care for a minor child whose school or daycare is closed due to COVID-19, they may be entitled to an additional 10 weeks of paid leave.

2) One of my employees took 4 days of paid FFCRA leave last month because he had a COVID-19 test and was waiting on the test results. He returned to work when the test was negative, and we paid him for the 4 days he was out. Now we need him to quarantine because his wife has COVID-19 and we do not want him coming to work for 14 days. Can he now use the 6 remaining days of paid leave?

Yes. The employee is entitled to take the remaining hours of paid leave (6 work days in this example). The rest of the leave can either be unpaid or vacation/sick leave at the employer’s discretion.

3) One of my employees took their 2 weeks (80 hours) of paid FFCRA leave and then was furloughed. We’ve now rehired her and she’s back at work. Does she get another two weeks of paid leave?

No. Employees are only entitled to 80 total hours of paid sick leave under the FFCRA.

If you are a FUBA member and have questions about paid leave in your business, call FUBA’s team of experts at 800-262-4483 or email us with your questions.

For more information about paid leave under the FFCRA, including documentation you should get from your employees who take this leave as well as tax credits for businesses who provide this paid leave, please visit FUBA’s Coronavirus Resources for small businesses:

Paid Leave for Employees if School/Daycare/Summer Camps are Closed

With the new school year fast approaching and some schools electing to delay the start date, we want to make sure employers are plugged into the requirements of FFCRA. Small businesses are required by the Families First Coronavirus Response Act (FFCRA) to give employees paid leave from wok in certain circumstances relating to COVID-19. One requirement is that the child’s school/daycare/summer camp must be unavailable because of COVID-19.

The below article from FUBA helps breakdown the requirements of FFCRA.

Small businesses are required by the Families First Coronavirus Response Act (FFCRA) to give employees paid leave from work in certain circumstances relating to COVID-19. Employees who cannot work due to very specific reasons related to COVID-19 are entitled to two weeks of paid leave, with an additional 10 weeks of paid leave if they have to stay home to care for a son or daughter whose school, daycare, or summer camp is closed due to COVID-19.

If you have an employee who cannot come to work because they have to take care of a child because the child’s summer daycare – a school, camp or other program in which the employee’s child is enrolled – is closed or unavailable for a COVID-19 related reason, the employee may be entitled to paid leave.

Keep in mind that the child’s school/daycare/summer camp must be unavailable because of COVID-19. School being closed for summer vacation does not qualify an employee for paid leave because school is always closed during the summer and that closure is not related to COVID-19. If school does not reopen in the fall due to COVID-19, that may qualify employees for paid leave. However, if schools reopen but the employee’s children are attending online or digitally, the employee may not qualify for paid leave.

If an employee requests paid leave, you should get the following:

  1. The employee’s name and the dates the leave is requested
  2. A statement of the COVID-19 related reason the employee is requesting leave
  3. A statement that the employee is unable to work or telework for this reason
  4. Documentation supporting the reason for leave

The employee also needs to give you the name and age of the child they will be taking care of, the name of the daycare/summer camp that has closed, and they must provide a statement that no one else will be caring for the child while the employee is on paid leave. If the child is older than 14, the employee must show that special circumstances require them to stay home with the child during daylight hours.

Employees taking paid leave because their child’s daycare/summer camp is closed due to COVID-19 must be paid two-thirds their regular rate of pay, up to $200 per day. Learn more about calculating pay here.

You can offset the cost of their leave by keeping a portion of the quarterly federal employment taxes you would otherwise deposit with the IRS. If the cost of the leave is more than your federal employment tax bill, you can request an advance refund from the IRS using form 7200. To claim a payroll tax credit, you must retain the documentation described above and comply with any IRS procedures for claiming the tax credit. For more information about how to claim these payroll tax credits and what documentation is required, click here. For more information about form 7200, click here.

Click here to learn about other reasons that entitle employees to paid leave.

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This article was written by FUBA Workers’ Comp

Paid Leave Concerns When Employees Get COVID-19 Twice – Law360.com

https://www.law360.com/articles/1291176

Law360 (July 15, 2020, 4:21 PM EDT) —

Mark Konkel
Mark Konkel
Maria Biaggi
Maria Biaggi
Nicholas Kromka
Nicholas Kromka

The coronavirus has been novel in more ways than one. On one end of the spectrum, employers confront new questions of almost philosophical dimensions.

How much risk is too much risk? What risks should we ask our employees to accept? Where is the line between ordinary risk — the kind that employees undertake when they walk out the door every day to go to work — and the extraordinary risks posed by a pandemic from which, in the end, employers cannot entirely shield their workforces?

A seemingly more mundane novelty is the plethora of new COVID-19 laws and regulations. Compliance should just be a matter of reading a statute and, well, complying. But even there, an evolving real-world pandemic potentially makes compliance just as complicated.

One example we have helped our clients wrestle with involves exactly this kind of straightforward-on-paper, tricky-in-practice complexity.

One requirement of the Families First Coronavirus Response Act appears to be simple: When an employee working for an employer with under 500 employees gets sick with COVID-19, is seeking a COVID-19 diagnosis, or is subject to a quarantine order of a doctor or a government, they are entitled to up to 80 hours of emergency paid sick leave.

And that made perfect sense when the law was hurriedly drafted: You get sick once, and you do not get sick again, right?

Wrong. Mounting evidence now shows that contracting COVID-19 does not confer absolute immunity and that many individuals have now contracted the novel coronavirus more than once. So what happens when an employee exhausts his or her 80-hour emergency paid sick leave entitlement, recovers from COVID-19, and then contracts it again?

What are the basic requirements of the FFCRA?

Under the FFCRA, full-time and part-time employees who are unable to work or telework due to one of the qualifying reasons below may take up to 80 hours of paid sick leave.

  • The employee is subject to a federal, state or local quarantine or isolation order related to COVID–19.
  • The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID–19.
  • The employee is experiencing symptoms of COVID–19 and seeking a medical diagnosis.
  • The employee is caring for an individual who is subject to the first or second reason above.
  • The employee is caring for his or her child if the school or place of care of the child has been closed, or the child care provider of such child is unavailable, due to COVID–19 precautions.
  • The employee is experiencing any other substantially similar condition specified by the secretary of the U.S. Department of Health and Human Services in consultation with the secretary of the U.S. Department of the Treasury and the secretary of the U.S. Department of Labor.

An employee who contracts COVID-19 may be eligible to take 80 hours of emergency paid sick leave for one or more of the above-qualifying reasons. However, they may only take 80 hours of paid sick leave once.

That is, the language of the FFCRA is arguably quite clear that two weeks of emergency paid sick leave is all an employee is entitled to within one Family and Medical Leave Act period, i.e., 12 months, whether a calendar year, another fixed 12-month leave year, etc.

The new legislation, effective April 1 to Dec. 31, was quickly drafted in March when the coronavirus was still novel. But while there is still so much that is unknown about COVID-19, we can no longer assume that an individual who has been infected with COVID-19 and recovers, will not be able to get the virus again.

In the U.S., people are reporting testing positive for the virus after having recovered from an initial infection.[1] According to the Centers for Disease Control and Prevention:

When a positive test occurs less than about 6 weeks after the person met criteria for discontinuation of isolation, it can be difficult to determine if the positive test represents a new infection or a persistently positive test associated with the previous infection. If the positive test occurs more than 6-8 weeks after the person has completed their most recent isolation, clinicians and public health authorities should consider the possibility of reinfection.[2]

And, of course, persons who are determined to be potentially infectious should undergo evaluation and remain isolated.

In April, the DOL issued guidance which also confirms the plain language of the FFCRA’s FMLA Expansion Act. That is, employees are not entitled to any more than 12 weeks of FMLA leave in a 12-month period, regardless of whether an employee takes paid leave under the FMLA Expansion Act or regular unpaid FMLA leave for reasons unrelated to COVID-19.

The FMLA Expansion Act does not add additional job-protected leave time. Rather, it adds additional qualifying reasons to take leave. Thus, an employee who takes 12 weeks of FMLA leave, does not have an additional 12 weeks of leave under the act because he or she is, for example, experiencing symptoms of COVID–19 for a second time and seeking another medical diagnosis.

Moreover, employees who may have taken FMLA leave for reasons other than the public health emergency in the preceding leave year may have reduced leave time under the FMLA for purposes of the public health emergency. This may have the unfortunate effect of potentially leaving those who are most vulnerable with less leave time than employees who have not needed to use regular unpaid FMLA leave for their own serious health condition. Also, the FFCRA only applies to employers with 500 or fewer employees.

New York employers are required to comply with both the FFCRA and the New York Emergency Paid Sick Leave Law, or EPSL. The benefits available under the EPSL vary based on the size and net income of the employer.

Under the EPSL, private employers with 100 or more employees are required to provide their employees with at least 14 days of paid sick leave. Employees in New York are eligible for benefits under the EPSL when the benefits provided by that law are in excess of those provided under the FFCRA.

In this situation, employees would be entitled to federal benefits, plus the difference in benefits provided under the FFCRA and the EPSL. In other words, no double dipping. And, unless the employee has to care for a family member with a serious health condition, he or she would not be entitled to New York paid family leave.

Given all this, there is no statutory obligation under the FFCRA to provide employees with additional paid leave in the unfortunate circumstance that an employee contracts the virus twice. However, this may not always be the answer under state law.

For example, the New York State Department of Health and New York State Department of Labor recently issued guidance providing that health care employees who test positive after a quarantine or isolation may receive paid sick leave for up to two additional periods of quarantine or isolation.

Employers could certainly opt to pay employees during a second quarantine, but they are not required to under the current federal law. Alternatively, employers could provide unpaid time off, if the employee has exhausted his or her paid time off.

An employer may also be obligated to consider leave as a reasonable accommodation for individuals whose disabilities put them at greater risk from COVID-19, unless such an accommodation would cause an undue hardship on the employer.

So that ends the inquiry, right? Again: wrong.

What’s an employer to do?

We are always wary of simple answers to tricky questions. One answer to the questions posed above is deceptively simple: If an employee has exhausted her 80 hours of FFCRA leave, it is exhausted, and she is not entitled to a second round of leave.

While that position is straightforward and legally defensible, it misses a bigger context. If an employee is not entitled to additional leave but has contracted COVID-19 twice (or more), a sensible employer, or at least, one that is interested in avoiding getting sued by other employees, will not allow the sick employee to return to work. But if an employer takes the position that an employee ordered to stay home is not entitled to pay, it opens up a whole other can of worms.

One policy arguably underlying the pay protection provisions of the FFCRA is to encourage candor: Employees will be less likely to ignore or minimize their own symptoms, and to tell their employers about what is going on, if they are not concerned about losing compensation as a reward for their honesty.

And with federal unemployment benefits of $600 per week in addition to the normal level of benefits still in place, an employee may well consider continuing to stay home or eventually finding another job.

These concerns underscore why many larger employers who are not subject to the FFCRA’s coverage because of their size have gratuitously offered pay protection to sick employees: You want to know that employees are sick, tell them to stay home to avoid community spread in the workplace, and — perhaps most importantly to your longer-term business goals — actually retain a workforce you hope can return soon enough in full force.

Obviously, employers must first and foremost ensure compliance with applicable law, including the FFCRA. But navigating the pandemic is not just a question of strict compliance. Arguably, protecting continuity of operations, the health of the workforce and an employer’s long-term investment in its workforce is at least as important as ensuring any shorter-term compliance.

While this article cannot address how a specific employer will weigh those potentially competing concerns, smart employers consider all of those impacts in deciding whether or not to maintain a leave policy that may exceed, not just meet, the requirements of the FFCRA.

Regardless of whether the U.S. is in the first or second wave, the possibility is now evident that employees may get the coronavirus for a second time, while having already exhausted the leave entitlements under the FFCRA, state leave laws and the employer’s PTO policy. Employers should be prepared to face this new obstacle, particularly as cases in the U.S. are not abating.


Mark A. Konkel is a partner and co-chair of the labor and employment practice group at Kelley Drye & Warren LLP.

Maria B. Biaggi is an associate at the firm.

Nicholas J. Kromka is an associate at the firm.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

Legislative Activity Update – FL Senate Bill 292

The state of Florida has passed Senate Bill 292.  This bill is responsible for defining the terms “loss run statement” and “provide”; requiring surplus lines and authorized insurers, respectively, to provide insureds either a loss run statement or certain information within a certain time frame after receipt of the insured’s written request.  This also requires insurers to provide notice to the agent of record after providing a loss run statement and prohibits insurers from charging a fee to prepare and provide one loss run statement annually.

Effective Date: 1/1/2021
Last Action: 6/22/2020 – Chapter No. 2020-51
Bill Text: Web Page | PDF

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Florida – Effective January 1, 2021, FL law changes for providing Loss Runs to the insured as well as notification to the Agent of Record.

  • An insurer shall provide loss runs to an insured within 15 calendar days after receipt of the insured’s written request.
  • Loss runs provided must contain the claims history with the insurer for the preceding 5 years or if history is less than 5 years then all years must be provided to the insured.
  • They can be electronically provided, allowing access through a secure website login or generate documents and mail.
  • The insurer must notify the Agent of Record that loss runs were provided to the insured at the time they are provided.
  • An insurer is not required to provide loss reserve information.