Hot Off the Presses: DOL Issues Revised FMLA Forms

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We are in the midst of a global pandemic, with many employers struggling financially to survive.  Yet, surprisingly, the biggest news from the U.S. Department of Labor (DOL) is not new safety rules intended to protect employees from the novel coronavirus.  Instead, last Friday, the DOL published revised optional-use forms to comply with the Family and Medical Leave Act (FMLA).

In early August 2019, the DOL had requested comments from the public on modifications to these forms.  Based on that feedback, the DOL has now published updated forms that employers can use to provide legally required notice to their employees and for employees to comply with their requirement to provide certification of their specific need for FMLA leave.  The updated forms are electronically fillable PDFs and can be saved electronically.

The newly revised forms include the following:

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Signing Your Life Away? – The COVID-19 Waiver

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Businesses often ask customers to sign a waiver before renting a Sea-Doo, zip-lining, tubing, or perhaps even so your child can bounce on a trampoline or in a bounce house.  But can a business use a waiver to avoid liability if a customer contracts COVID-19 after visiting the business?  Like the novel coronavirus, it is a novel legal issue.

Under Florida law, these kind of waivers are called exculpatory agreements and are frowned upon.  However, courts will enforce a waiver, even relieving a business owner from its own negligence provided the agreement is clear and understandable so that an ordinary and knowledgeable person would know what they are contracting away.  The better practice is to make it clear in the agreement that the signer is releasing the business even from its own negligence. Under these conditions, courts will enforce exculpatory contracts provided they do not violate public policy.

It is the public policy proviso that may stand in the way of an enforceable COVID-19 waiver.  A business that fails to take adequate steps to protect the public and its employees from the novel coronavirus may have a hard time convincing a court to relieve it of liability – assuming the plaintiff can prove that the business was the source of infection.  With respect to employees, it is highly unlikely that the business can waive away its duty to provide a safe workplace.  Also, although it is unclear whether Florida’s workers’ compensation law will cover a “work-related” novel coronavirus exposure, Florida law prohibits waivers of work-related injuries.

Waivers may be of little value to protect a business against claims from its employees.  The waivers may be more effective to protect a business from customers’ claims.  The best approach is to follow federal, state, and local guidelines and requirements to try to reduce the spread of COVID-19, thereby maximizing the likelihood that a court will enforce your waiver agreement.

Top Takeaways from Our Back to Work Virtual Chat

Earlier this week, we hosted a “Back to Work Virtual Chat.” As businesses begin to re-open and adjust to the “new normal”, we hoped to provide employers, big or small, with guidance to help navigate through these unprecedented times. Our goal was to provide practical information (not legal advice)  to help organizations address the various steps needed to implement back-to-work processes.

We had just under 500 folks join us and we received many good questions. Thank you to all who joined us! To our clients, if you have questions or need advice or guidance on any specific issue or workplace situation, do not hesitate to contact us. We also encourage others to contact their attorneys for additional information and guidance.

For those of you who need a refresher or weren’t able to join us, we’ve included our top takeaways below!

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Preparing for a Hurricane Amid the Pandemic

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While we are all busy thinking about ways to safeguard ourselves, our families, and our businesses during the coronavirus pandemic, let us not forget that hurricane season is just around the corner. It runs from June 1 through November 30. Unfortunately, NOAA has predicted a busy 2020 Atlantic hurricane season with a forecast of 13 to 19 named storms. There is no time like the present to get prepared.

A comprehensive hurricane plan to protect your business is always a good start. Your plan should be reviewed annually for needed changes and improvements. Prior to a storm you should consider your risks – can your business operate without computers, copiers, files, electric, water or internet? How will you make payroll? Will employees be able to get to work? Next, develop a plan to address the risks and to safeguard your employees, business and equipment. Remember to order storm equipment and supplies early, such as batteries, water, file boxes (waterproof?), plastic sheeting, extra garbage bags, and duct tape. Don’t forget to update current employee, client, customer and vendor contact information and to print copies in case you cannot access these electronically. You may be forced to use cell phones and personal email addresses to communicate during and after a storm. Designate an emergency response team and provide each team member with a list of employees for whom he or she is responsible for contacting after the storm has passed. Provide information on the company’s voicemail system and website so that employees can check the status of the business’s operations and receive updates.

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COVID-19: A Turning Point For the Standard 9-5 Work Week?

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Where did the 8 hour, 5 day work week come from? Ford Motor Company in 1914, but it was a long time coming.  Before that, factories were open around-the-clock with employees working long days and 100 hour weeks. In the late 1880s, a labor movement started using a slogan like “eight hours for work, eight hours for play and eight hours for rest”.  After that, it took almost 20 years until Ford reduced employees’ regular work week to 5 days consisting of eight hour days. The company also doubled employee pay, causing shockwaves throughout the industry. By doing this, Ford saw employee productivity increase and profit margins double. The thinking was that if the company was going to make any money, employees needed time off to buy things.  Seeing the success of Ford, other companies naturally implemented the eight hour day, which soon became the working standard.  So there it is, the reason the 8 hour, 5 day work week exists in our country for over a century is nothing more than an old effective factory work schedule.

Where is the 8 hour, 5 day work week going? No one really knows, but times they are a changing and the days of factory workers fighting for shorter days and benefits are behind us.

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Register Now for Our Back to Work Virtual Chat – June 1

Trying to juggle work and home? Wish you had a crystal ball to see the future “new normal” workplace? Wouldn’t you welcome some guidance on return to work issues?

Problem solved – we know how to juggle and we have a crystal ball! We also can provide guidance on important workplace issues that HR and in-house counsel will be facing as businesses reopen and employees return to work.

Register Here for our Back to Work Virtual Chat on Monday, June 1, 2020 from 10:00am – 12:00pm.

Moderated by Bob Turk, we will discuss the following topics as they relate to COVID-19 and your business:

If you have specific questions on these topics that you would like for us to try to address, please email us by Thursday, May 28.

BONUS: All attendees will receive Lisa Berg’s Guide to Return to Work along with other materials referenced in the chat.

The program is pending HRCI, SHRM, and The Florida Bar CLE credit confirmation.  Once approved, credit information will be sent to all registrants.

Note: The program is only available to the first 500 registrants.

Even Stuck at Home, Humans are Still the Best Recruiters

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COVID-19 has thrown a wrench into every employer’s near-term plans. While many companies have temporarily shut down, and many others have put hiring on hold, some employers will have to kickstart their hiring efforts as the economy begins to reopen. Data shows that the stay-at-home economy created a surge in social media usership, so it will be no surprise when home bound recruiters try to use Facebook and other platforms to reignite their workforce. HR professionals who currently use, or plan to use social media advertising for online recruiting need to understand its potential legal pitfalls.

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5 Tips for Maximizing Productivity for Remote Employees

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The COVID-19 pandemic has forced the majority of businesses to at least offer, if not require, work-from-home options for employees. Employers are now facing many challenges that come with maintaining the same level of productivity when employees are working remotely. Below are a few guidelines to help ensure that your employees are maximizing their time outside of the office and inside their home.

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POSTPONED: Annual Labor & Employment Law Seminars

Dear Clients and Friends,

These words just came out of my mouth, “I have extra toilet paper I can trade for some rice.”  Yesterday, I wore gloves, a face mask and carried homemade alcohol wipes in order to go food shopping. How the world has changed in one month!

So this will not come as a shock to you. We are postponing our Labor and Employment Seminars in both Tampa (May 8th at Tampa History Museum) and Miami (May 15th at Hard Rock Stadium). Not to worry, we will reschedule and let you know when.  To make it easy for those who may have already paid, your registration will automatically be transferred to the new date when it is finalized. However, we understand that you may need to either substitute attendees or may need a refund altogether. If that is the case, please contact Kaylan Domond at kdomond@stearnsweaver.com.

In the meantime, please stay healthy and safe. Yes, we are on top of the new employment laws and regulations issued as a result of the pandemic.  We are here to answer any questions you may have on the new laws and continue to assist clients on all other employment and labor matters. We look forward to seeing you again soon!

 

 

Robert S. Turk
Chair, Labor & Employment
Stearns Weaver Miller

DOL Provides More Guidance on the FFCRA

The DOL has been working overtime attempting to clarify and answer questions on various aspects of the Families First Coronavirus Response Act (FFCRA). As we reported last week, the DOL issued its “Employee Rights” poster, along with initial guidance in the form of “Questions and Answers.” On Thursday night (March 26) and then again on Saturday evening (March 28), the DOL added answers to 45 more questions, attempting to clarify these laws that go into effect on April 1. Click here to access the updated “Questions and Answers.”

Here are the highlights of what we know:
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