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Florida Governor Amends Safer-At-Home Order And Announces Plan To Reopen State

April 30 - Posted at 3:05 PM Tagged: , , , , , , ,

Florida Governor Ron DeSantis just extended his Safer At Home Order for the State of Florida but announced his plan to gradually re-open the state pursuant to a new Order that will go into effect just after midnight (at 12:01 am) on the morning of May 4, 2020. The new Order initiates the first of three phases to re-open every county in Florida except for Miami-Dade, Broward and Palm Beach counties. Additionally, local governments in Florida will also be able to have more restrictive policies in place if they desire. What do Florida employers need to know?

Essential And Non-Essential Businesses Are Permitted To Operate Pursuant To CDC And OSHA Guidelines

The new Order permits all services and activities currently allowed under the previous Safer-at-Home Order. Any non-essential businesses that were not previously permitted to be open can reopen as long as they also follow CDC and OSHA guidelines. However, The Order contains the following industry specific restrictions:

  • Schools: Schools will remain closed during Phase One and can continue conducting distance learning.
  • Healthcare: Hospitals and senior living facilities are prohibited to have visitors, and those interacting with residents and patients must adhere to strict protocols regarding hygiene. However, elective surgeries can resume, as clinically appropriate at facilities that adhere to Centers for Medicare & Medicaid Services (CMS) guidelines. Additionally, any facility that performs elective procedures must be able to immediately convert for treatment of COVID-19 patients in a surge capacity situation, must have adequate PPE, has not sought government assistance regarding PPE supplies since resuming elective procedures, and has not refused to provide support to and proactively engage with skilled nursing facilities, assisted living facilities, and other long term care residential providers.
  • Hospitality: Sit-down dining establishments can operate at 25% occupancy under strict physical distancing protocols. However, bars will remain closed.
  • Retail: Storefronts may operate at no more than 25% of their building occupancy.
  • Museums and libraries: Can operate at no more than 25% of their building occupancy if permitted by local government. Also, any interactive functions or exhibits including child play areas must remain closed.
  • Miscellaneous: Gyms, movie theatres, and professional services (such as hair salons and barbershops) will remain closed.

Every business is required to continue to follow guidelines issued by the CDC and OSHA. These guidelines include:

  • Promoting healthy hygiene practices;
  • Intensifying cleaning, disinfection (e.g., small static groups, no large events);
  • Avoiding non-essential travel, and encouraging alternative commuting and telework;
  • Spacing out seating (more than 6 feet) and staggering gathering times;
  • Restricting use of any shared items and spaces; and
  • Training all staff in above safety-actions.

The CDC also recommends that businesses only reopen after they have implemented safeguards for the ongoing monitoring of employees, including:

  • Encouraging employees who are sick to stay home;
  • Establishing routine, daily employee health checks;
  • Monitoring absenteeism and having flexible time off policies;
  • Having an action plan if a staff member gets COVID-19;
  • Creating and testing emergency communication channels for employees; and
  • Establishing communication with state and local health authorities.

Senior Citizens And Individuals With Significant Underlying Medical Conditions

The Order strongly encourages individuals who are older than 65 and those with significant underlying medical conditions to stay at home. They should take all measures to limit the risk of exposure to COVID-19 such as wearing masks during face-to-face interactions. Additionally, the Order encourages individuals to avoid socializing in groups of more than 10.

Social Distancing And Other Guidelines

Additionally, all persons in Florida should practice social distancing, avoid nonessential travel, and adhere to guidelines from the CDC regarding isolation for 14 days following travel on a cruise or from any international destination and any area with significant presence of COVID-19. The Order also extends Governor DeSantis’ Orders regarding airport screening and isolation of individuals traveling to Florida. Notably, there is an exception for these orders for persons involved in military, emergency, health or infrastructure response or involved in commercial activity.

Criminal Penalties

A violation of the Order is a second-degree misdemeanor which is punishable by imprisonment not to exceed 60 days, a fine not to exceed $500.00 or both.

What Does This Mean For Employers?

Employers with operations in Florida should review the CISA guidance and Miami-Dade County Emergency Order 07-20, and its amendments, to determine if they are deemed essential or non-essential.  

Before reopening, you should have a thorough plan in place to establish a safe and healthy workplace and share that plan to provide employees peace of mind. You should also be prepared to address concerns from older employees and those with underlying significant health conditions regarding whether or not they must come in to work. You should also carefully assess the availability of telework for these employees.

As you begin the process of reopening, you should familiarize yourself with some useful info: 

Florida’s Minimum Wage Increased as of January 1, 2020

January 02 - Posted at 10:00 AM Tagged: ,

Florida raised its minimum wage to $8.56 an hour beginning Jan. 1, 2020, up 10 cents from $8.46 in 2019. For tipped employees, the minimum wage will be at least $5.54 an hour.

The minimum wage rate is recalculated each year on Sept. 30, based on the Consumer Price Index. 

Employer found liable for intentionally violating minimum wage requirements are subject to a fine of $1000 per violation, payable to the state in addition to potential civil action law suit. 

Be sure to update your required Florida Minimum Wage Posting to reflect this change. You can download a copy of the new poster here.

Florida’s Minimum Wage to Increase on January 1, 2018

December 20 - Posted at 9:00 AM Tagged: , ,

Florida is raising its minimum wage to $8.25 an hour beginning Jan. 1, up 15 cents from $8.10 in 2017. For tipped employees, the minimum wage will be at least $5.23 an hour.

The minimum wage rate is recalculated each year on Sept. 30, based on the Consumer Price Index. 

Employer found liable for intentionally violating minimum wage requirements are subject to a fine of $1000 per violation, payable to the state in addition to potential civil action law suit. 

Be sure to update your required Florida Minimum Wage Posting to reflect this change. You can download a copy of the new poster here.

Florida’s Minimum Wage to Increase on Jan 1, 2017

December 08 - Posted at 3:00 PM Tagged: ,

Florida is raising its minimum wage to $8.10 an hour beginning Jan. 1, up 5 cents from $8.05 in 2016, the state Department of Economic Opportunity has announced. For tipped employees, the minimum wage will be at least $5.08 an hour.


The minimum wage rate is recalculated each year on Sept. 30, based on the Consumer Price Index. In 2016, the state’s minimum wage was unchanged from the previous year.


Be sure to update your required Florida Minimum Wage Posting to reflect this change. You can download a copy of the new poster here.

Mandatory Florida Posting Change

September 14 - Posted at 8:35 PM Tagged: , , ,

The State of Florida has updated its Discrimination poster to include pregnancy as a protected class. The state’s Civil Rights Act was amended earlier this year to prohibit discrimination on the basis of pregnancy. This amended law took effect July 1st and you are required to post this revised notice. Be sure to check your postings to make sure you have the updated notice posted. Please contact out office if you need a copy of the updated notice.

Florida’s 2015 legislative session started in March with many employment-related measures being introduced. They include:


SB 98, HB 25: Employment Discrimination Creating the Helen Gordon Davis Fair Pay Protection Act recognizing the importance of the Department of Economic Opportunity and the Florida Commission on Human Relations in ensuring fair pay; creating the Governor’s Recognition Award for Pay Equity in the Workplace; and requiring that the award be given annually to employers in Florida who have engaged in activities that eliminate barriers to equal pay for equal work for women


SB 114, HB 47: State Minimum Wage Increasing the state’s hourly minimum wage to $10.10.

SB 156, HB 33: Prohibited Discrimination Revising the Florida Civil Rights Act to include sexual orientation and gender identity or expression as protected characteristics; and prohibiting discrimination based on perceived race, color, religion, sex, national origin, age, sexual orientation, gender identity or expression, handicap, or marital status.


SB 192, SB 246, HB 1: Texting While Driving Revising penalties for violations of the Florida Ban on Texting While Driving Law to include enhanced penalties when the violation is committed in a school zone and removing requirement that provisions be enforced as secondary action by law enforcement.


SB 214, HB977: Discrimination in Employment Screening (“Ban the Box”) Prohibiting an employer from inquiring into or considering an applicant’s criminal history on an initial employment application, unless required to do so by law.


SB 356, HB 121: Employment of Felons Providing incentives for employment of person previously convicted of felony.


SB 456, HB 325: Labor Pools Revising the methods by which labor pools are to compensate day laborers.


SB 528, HB 683: Medical Use of Marijuana Permitting medical use of marijuana and providing licensure requirements for growers and retailers.


SB 890, HB 455: Florida Overtime Act of 2015 Requiring payment of time-and-one-half an employee’s regular rate of pay for all hours worked over eight in a day, over 40 in a work week, or on the seventh day of any workweek.


SB 892, HB 297: Safe Work Environments Subjecting employees to an “abusive work environment” is made an unlawful employment practice, and retaliation for reporting the practice is prohibited.


SB982, HB 625: Discrimination Based on Pregnancy Amending the Florida Civil Rights Act to prohibit discrimination based on pregnancy, childbirth, or related medical conditions. (The Florida Supreme Court in 2014 held that the Act protects against pregnancy discrimination.)


SB1318, HB 589: State Minimum Wage Making it a third degree felony to procure labor for less than minimum wage, i.e., “with intent to defraud or deceive a person.”


SB1396, HB 433: Employment Discrimination Amending the Florida Civil Rights Act to include unpaid interns within the definition of “employee.”


SB1490, HB 1185: Florida Healthy Working Families Act (“Mini FMLA”) Requiring employers to provide sick and safe leave to employees and creating a complaint procedure, plus a civil cause of action for damages and fees in the event of a violation. Employers of more than nine employees must provide paid sick and safe leave; employers of nine or fewer employees must provide unpaid sick and safe leave.


SB 126: Social Media Privacy Among other things, prohibiting an employer from requesting or requiring access to a social media account of an employee or prospective employee under certain circumstances.


SB 1096: Unemployment Compensation Prohibiting disqualification of victims of domestic violence from receiving benefits if they leave work voluntarily.

Federal Appeals Court Delivers Potentially Crippling Blow to Obamacare

July 24 - Posted at 2:01 PM Tagged: , , , , , , , , , , , , , , , , , ,

Following the recent Supreme Court ruling regarding contraceptives in the Hobby Lobby Stores case, a new circuit decision now sets the stage for another possible Supreme Court decision on the ACA.  On Tuesday (July 22, 2014), the U.S. Court of Appeals for the District of Columbia (in Halbig v. Burwell) and the U.S. Court of Appeals for the Fourth Circuit (in King v. Burwell) issued conflicting opinions regarding the IRS’ authority to administer subsidies in federally facilitated exchanges.  

 

In general, the employer mandate requires that “applicable large employers” offer their full-time employees minimum essential coverage or potentially pay a tax penalty in 2015.  However, according to the statutory text of the ACA, the penalties under the employer mandate are triggered only if an employee receives a subsidy to purchase coverage “through an Exchange established by the State under section 1311…” of the ACA.  If a state elected not to establish an exchange or was unable to establish an operational exchange by January 1, 2014, the Secretary of HHS was required to establish a federal-run exchange under section 1321 of the ACA.  

 

The appellants in each of these cases are residents of states that did not establish state run exchanges.  Consequently, the appellants argue that the IRS does not have the authority to administer subsidies in their states because the exchanges were set up by HHS under section 1321 of the ACA and not under section 1311 as is the clear prerequisite for IRS authority to administer the subsidies.

 

In regulations implementing the subsidies, the IRS recognized this discrepancy and noted that “[c]ommentators disagreed on whether the language [of the ACA] limits the availability of the premium tax credit only to taxpayers who enroll in qualified health plans [QHPs] on State Exchanges." 

 

The IRS, however, rejected these comments and stated that, “[t]he statutory language of section 36B and other provisions of the Affordable Care Act support the interpretation that credits are available to taxpayers who obtain coverage through a State Exchange, regional Exchange, subsidiary Exchange, and the Federally-facilitated Exchange. Moreover, the relevant legislative history does not demonstrate that Congress intended to limit the premium tax credit to State Exchanges.  Accordingly, the final regulations maintain the rule in the proposed regulations because it is consistent with the language, purpose, and structure of section 36B and the Affordable Care Act as a whole.”

 

In Halbig v. Burwell, the D.C. Circuit disagreed with the IRS’ interpretation and, in a 2-1 decision, held that the IRS regulation authorizing tax credits in federal exchanges was invalid.  The court focused heavily on the text itself and concluded, “that the ACA unambiguously restricts the …subsidy to insurance purchased on Exchanges established by the state.”

 

In an opinion issued only hours following the D.C. Circuit decision, the 4th Circuit, in King v. Burwell, agreed with the IRS’ interpretation and upheld the subsidies by permitting the IRS to decide whether the premium tax credits should be available over the federal exchange.  The justices argued that the text did not intend to create two unequal exchanges. Additionally, they argue that the ambiguous text of the act intended that the exchanges be operated as appendages of the Bureaucracy, and so under the directives of the IRS.

 

Currently, 36 states are using federally facilitated exchanges, including Florida. Further, roughly 85% of enrollees who signed up for health insurance receive subsidies allowing them to purchase coverage that would be otherwise unaffordable.  If the subsidies allocated over the federal exchange were declared invalid, those individuals’ ability to receive subsidies to purchase coverage could be jeopardized. As a result, the average price of a health plan is projected to rise from $82 per month to $346 per month, making it more difficult to afford for approximately 5.4 M enrollees.

 

While the Halbig decision is a major setback to the ACA, it is almost certainly not the final word on this issue.  Given the fact that two courts have reached different outcomes, the Supreme Court is more likely to weigh in on the decision. However, the Halbig decision is likely to be reviewed by the entire D.C. Circuit prior to any potential review by the Supreme Court.

Obama Administration Extends Another ACA Compliance Deadline for Health Plans

March 07 - Posted at 3:51 PM Tagged: , , , , , , , , , , , , , ,

It was announced on Wednesday, March 5th, by the Obama Administration  that it would allow some health plans that do not currently meet all Affordable Care Act (ACA) requirements to continue offering non-compliant insurance for another two years. The Centers for Medicare and Medicaid Services (CMS) released the announcement, clarifying the new policy.

 

In November 2013, the Obama administration decided that some non-grandfathered health plans in the small group and individual markets would not be considered out of compliance if they failed to meet certain coverage provisions of the ACA. The transition relief was originally scheduled to last for one year, and was viewed as a response to the numerous health insurance policy cancellations that would result from the new requirements.

 

This recent announcement extends this relief for two additional years. CMS released the following:

“At the option of the States, health insurance issuers that have issued or will issue a policy under the transitional policy anytime in 2014 may renew such policies at any time through October 1, 2016, and affected individuals and small businesses may choose to re-enroll in such coverage through October 1, 2016.”

 

Who Will This  Impact?

 

This decision, which will likely prevent another wave of cancellations that were scheduled to begin November 1, 2014 and will impact some insurance offerings, but is unlikely to have a significant impact, since only about half of the states have opted to grant extensions to health plans within their jurisdictions. Further, the number of people currently on these non-compliant plans has been dropping, and is expected to continue to decline. Under the new policy, these plans (which typically offer fewer benefits at lower costs since they do not have to abide by the ACA’s minimum essential coverage) will still be available until plans expire in 2017.

 

Please note that it will be up to each individual state, as well as each individual insurance carrier, as to if they will decide to adopt this additional two year extension. Under the original one year transitional relief, even though it was allowed in the State of Florida, there are currently some health insurance carriers who have decided to not allow groups to renew their existing non-compliant medical plans.

 

We will continue to keep you up to date of new developments in ACA implementation as they arise. Please contact our office for additional information regarding your group’s medical policy and the impact of this recent change on it.

Reminder: Healthcare Marketplace Open Enrollment ends March 31, 2014

March 06 - Posted at 2:01 PM Tagged: , , , , , , , , , , , , , ,

If you are interested in signing up for medical coverage through the Marketplace, please note that you only have until the end of the open enrollment period (March 31, 2014) to sign up for coverage effective either April 1, 2014 or May 1, 2014. The effective date of your coverage in the Marketplace depends on when your application is submitted and processed.

 

The only way you will be able to enroll in a Marketplace medical plan outside of the open enrollment period is if you qualify for a “special enrollment” due to a qualifying event. A qualifying event is a change in your life that would make you eligible to sign up for coverage outside of open enrollment such as a marriage, divorce, birth or adoption, moving to a new state, loss of employment or loss of coverage due to changes in employment, etc. With employer based medical coverage, you typically have 30 days from the date of the qualifying event to enroll or make changes to your coverage due to a qualifying event, but the Marketplace allows you 60 days from the qualifying event to make changes.

 

You can enroll on either Medicaid or the Children’s Health Insurance Program (CHIP) at any time during the year as there is no limited open enrollment periods for these programs. You only need to qualify for these programs to be eligible. You can either complete a Marketplace application to find out if you are eligible for either program or contact your state agencies for further information.

 

The tentative next open enrollment dates for the Marketplace are November 15, 2014 through January 15, 2015, however please note that these dates are subject to change. 

Florida Minimum Wage to Increase on January 1, 2014

December 26 - Posted at 6:01 PM Tagged: , , ,

Florida’s minimum wage is currently $7.79 per hour. Beginning January 1, 2014, Florida’s minimum wage will increase to $7.93 per hour, which is a 1.7% (or $0.14) increase from last year.

 

Employers of “tipped employees” who meet eligibility requirements for the tip credit under the Fair Labor Standards Act (FLSA) may count tips actually received as wages under the FLSA. The employer, however, must pay “tipped employees” a direct wage. Effective January 1, 2014, the new minimum wage for tipped employees should become $4.91 per hour plus tips.

 

 

Florida law requires a new minimum wage calculation each year on September 30, based on the Consumer Price Index. If that calculation is higher than the federal rate (which is currently $7.25 per hour), the state’s rate would take effect the following January.

 

Please contact our office if you need a copy of the 2014 Florida Minimum Wage Poster. This will need to be posted in a visible place for all employees by January 1, 2014.

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