Employment Law Feb-2021

Icard Merrill’s Employment Law Group is committed to providing the most up-to-date information to employers regarding COVID-19. Employers should remember that guidance from public health authorities is likely to change as the pandemic evolves. Therefore, employers should continue to follow the most current information on maintaining workplace safety.

COVID lawsuits

Good Faith Efforts to Comply with CDC Guidance Provide Protection for Employers

New Florida law protects businesses from liability for COVID-19 lawsuits

On March 29, 2021, Governor Ron DeSantis signed into law Florida Statute 768.38, designed to impose a high standard on plaintiffs seeking to hold businesses, governmental entities, schools, religious organizations, and other persons and entities liable for claims arising out of or associated with COVID-19 exposure. Under the law, for any COVID-19-related civil action to proceed against a covered entity, a plaintiff must first:

  • Plead his or her complaint with particularity; and
  • Simultaneously submit a physician’s affidavit confirming the physician’s belief that the plaintiff’s COVID-19-related injury occurred because of the defendant’s conduct.

Failure to meet these requirements results in dismissal of the complaint without prejudice.

Further, the court must make a preliminary finding as to whether the defendant made a good faith effort to substantially comply with authoritative or controlling government-issued health standards or guidance when the cause of action accrued. Such a good faith showing results in immunity from civil liability. Game over.

In the absence of such a showing, the lawsuit may proceed. The plaintiff must then meet the high burden of demonstrating by clear and convincing evidence that the defendant acted with gross negligence.

Accordingly, even though employers will benefit from workers’ compensation immunity for any potential claims asserted by their own employees, it remains prudent for all businesses to continue to comply with CDC and local government guidelines to protect employees, patrons, visitors, customers, etc. from COVID-19 exposure, and to document those efforts in written policies and procedures. Such compliance efforts would be “Exhibit A” under this new law in response to any COVID-19 claims asserted against a covered entity.

safe workplace

Get a free printable Employer Checklist:
“Maintaining a Safe Workplace During COVID”


American Rescue Plan Act
What Does It Mean for Employers?

Several aspects of the American Rescue Plan Act of 2021 (“ARPA”) enacted on March 11, 2021 directly impact employers.

Cobra SubsidiesCobra subsidies

In response to the toll the COVID-19 pandemic has taken on the lives of many workers who have lost their jobs and/or had their hours reduced, the federal government has taken action to ensure many of those workers can maintain their health insurance coverage at no cost to them. The federal law known as COBRA requires employers with 20+ employees to allow their employees to continue health care coverage at their own expense. Very often, this expense is extraordinarily higher than the deduction the employee had been taking while employed. Accordingly, the American Rescue Plan Act of 2021 (“ARPA”) provides that, for the period from April 1, 2021 through September 30, 2021, if an employee’s COBRA qualifying event is an involuntary termination (for something other than gross misconduct) or a reduction in hours, s/he may be an “Assistance Eligible Individual.” In that case, 100% of the COBRA premium is paid by the employer, with reimbursement to the employer through quarterly federal payroll tax credits.

On April 7, 2021, the Department of Labor (“DOL”) issued guidance regarding the COBRA subsidy.

> GO HERE for the guidance

The ARPA requires employers and their plans to distribute new ARPA general election notices by May 31, 2021.

> GO HERE for the model general notices on the DOL’s website

Updated notices also need to be sent to employees who were involuntarily terminated or who became COBRA-eligible due to a reduction in hours within the 18 months preceding April 1, 2021 (or between October 1, 2019 and March 31, 2021), but who did not elect coverage at the time. Under ARPA, they get a second chance to sign up. They can take advantage of the subsidized premiums from April through September 2021 unless their 18-month COBRA eligibility period ends earlier or they become ineligible for another reason. Employers also need to send any such notices by May 31, 2021.

> GO HERE for the model notices of extended election period

Employers will also need to send notices when an individual’s subsidies are about to end. These warning notices must be sent between 15 & 45 days before the subsidy expires.

> GO HERE for the DOL’s model Notice of Expiration Period of Premium Assistance

Action Items for Employers

Some of the action items to be taken by employers in response to the ARPA include:

  1. Review and update COBRA notices and procedures to incorporate the ARPA requirements.
  2. Identify individuals who are COBRA qualified beneficiaries due to an involuntary termination of employment before April 1, 2021, and provide them the notice of extended COBRA election opportunity.
  3. Issue all updated notices by May 31, 2021.
  4. Modify termination paperwork and separation/severance agreements to account for the potential application of the COBRA subsidy.
  5. Identify and contact any individuals who may be eligible for a credit against future COBRA payments or a refund, and any former employees whose terms of severance will be affected by the COBRA subsidy.
FAQs about Cobra Premium Assistance under the ARPA

FFCRA Tax Credits Continuedtax credits

ARPA also extends the federal tax credit for Families First Coronavirus Response Act (FFCRA) paid sick leave and paid expanded family and medical leave (now voluntary) for six more months through September 30, 2021.

Additional qualifying reasons for leave now include:

  • Employee obtaining COVID-19 immunization (vaccination);
  • Employee recovering from a condition, illness or disability related to the vaccination; and
  • Employee seeking or awaiting results of a COVID-19 test or diagnosis (including where the employer has requested the test or diagnosis)

While leave is no longer mandatory, the ARPA also provides an additional 10 days of paid sick leave as of April 1, 2021, for which the tax credit may be recovered. So employees who already used all leave available under the original FFCRA can use additional leave between April 1, 2021, and September 30, 2021. The law also now imposes nondiscrimination rules, so employers cannot discriminate in offering leave in favor of highly compensated or full-time employees or based on tenure.

Useful Links:

If you have questions about your company’s obligations under the ARPA, the FFCRA, or need assistance with modifying your termination paperwork and separation/severance agreements in light of the ARPA, please reach out to Attorney Jessica Farrelly in the firm’s Employment Law Group.

Jessica M. FarrellyJessica Farrelly, Sarasota Attorney
phone  //  941.366.8100
fax  //  941.366.6384