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Recent Executive Orders Regarding the Coronavirus Pandemic

Caitlin Szematowicz — Sat, 02 May 2020 19:41:00 +0000

Executive Order 20-111

On April 29, 2020, Florida Governor Ron DeSantis issued two executive orders: (1) # 2020-111 Executive Order re: Limited Extension of Essential Services and Activities and Vacation Rental Prohibition and (2) # 2020-112 Executive Order re: Phase 1: Safe. Smart. Step-by-Step. Plan for Florida’s Recovery. This article will review Executive Order 20-111: Limited Extension of Essential Services and Activities and Vacation Rental Prohibition. The entirety of Executive Order 20-111 is that it extends two previously-entered Executive Orders: Executive Orders 20-87 and 20-91. The first executive order which was extended by Executive Order 20-111 is Executive Order 20-87. Executive Order 20-111 extends this previous executive order until May 4, 2020. Further, Executive Order 20-111 specifically provides that once May 4, 2020 occurs, Executive Order 20-87 will then be extended by a subsequent order. Executive Order 20-87 pertains to vacation rental closures. The second and last executive order which was extended is Executive Order 20-91 (which was also amended by Executive Order 20-92) until May 4, 2020. Executive Order 20-91 pertains to essential services and activities during the COVID-19 emergency.

Executive Order 20-87

Executive Order 20-87 noted that Florida is experiencing an increase in individuals coming to Florida from out-of-state locations and that Florida vacation rentals and third-party platforms advertising vacation rentals present an attractive lodging destination for out-of-state individuals. Accordingly, Florida Governor Ron DeSantis ordered that all parties engaged in renting vacation rentals properties are to suspend vacation rental operations. Pursuant to the Executive Order, vacation rentals are prohibited from making new reservations or bookings, and renters shall not accept new guests for the duration of the order. This Executive Order applies to the rental of any house, condominium, cooperative, or dwelling unit that is also a transient public lodging establishment (i) which is rented out for periods of less than thirty days or one month, (2) which is advertised or held out to the public as a place regularly rented to guests, or (3) which is otherwise regulated as a vacation rental pursuant to the Florida Statutes. The Executive Order specifically states it does not apply to hotels, motels, inns, resorts, non-transient public lodging establishments, timeshare projects, long-term rentals, rental stays where the guests were currently staying in the rental, and rentals to persons who were performing military, emergency, governmental, health or infrastructure response, or travelers engaged in non-vacation commercial activities. The Executive Order also addressed violations of the Order. Such violations include that Florida’s Department of Business and Professional Regulation will revoke the vacation rental license of any party that violates the order or advertises for vacation rental opportunities during the order. Violations also include that parties that violate the order – or attempt to violate the order through advertising or means of solicitation – may be charged with a second-degree misdemeanor. Again, it is imperative to note that Executive Order 20-111 provides that once the extension of Executive Order 20-87 expires at 12:01 a.m. on May 4, 2020, the Order will then be extended by a subsequent order.

Executive Order 20-91

Executive Order 20-91 became effective April 3, 2020, and it was subsequently amended by Executive Order 20-92 to supersede any conflicting official action or order issued by local officials in response to COVID-19. The order was originally set to expire on April 30, 2020, and it provides that Executive Order 20-68 (bars, restaurants) and Executive Order 20-71 (alcohol sales, restaurants) remain in effect through the duration of Executive Order 20-52, including any extensions. The Executive Order provides that senior citizens and individuals with a significant underlying medical condition shall stay at home and take all measures to limit the risk of COVID-10. Executive Order 20-91 also orders that all persons shall limit their movements and interactions outside of their home to do only those necessary to obtain or provide essential services or conduct essential activities. This Executive Order defines “essential services” as (i) those set forth in the U.S. Department of Homeland Security in its Guidance on the Essential Critical Infrastructure Workforce, v. 2 (March 28, 2020) and any subsequent lists published, (ii) those businesses and activities as designated by Executive Order 20-89 and its attachments (which consists of a list propounded by Miami-Dade County in multiple orders), and (iii) those other “essential services” which may be added under this order with the approval of the State Coordinating Officer and in close coordination with the State Health Officer. Further, the Executive Order 20-91 expressly states that nothing in this order prohibits individuals from working from home, and individuals are encouraged to work from home. Executive Order 20-91 limits “essential activities” to (1) attending religious services, (2) participating in recreational activities (consistent with social distancing guidelines; examples include walking, biking, hiking, fishing, hunting, running, or swimming;), (3) taking care of pets, (4) carrying for or assisting a loved one of friend. The Executive Order specifically said that a social gathering in a public space is not an essential activity. For Pinellas County residents, it is important to note that subsequent to Executive Order 20-91, the Pinellas County Board of County Commissioners issued Resolution 20-23. This order provided that any retail business, operation, or organization (“business”) which is not within the category of “essential services” or “essential activities” pursuant to Executive Order 20-91 must close. Any businesses which continue to operate pursuant to 20-91 must – to the maximum extent possible – implement and comply with the current CDC guidance on social distancing and hazard mitigation (including personal proximity, sanitation, and hygiene). Further, the Pinellas County Sheriff’s Department and Pinellas County Board of County Commissioners subsequently issued a “State of Florida & Pinellas County ‘Safer-At-Home Guidance’” which provides insight on what non-essential businesses shall close in Pinellas County under the Governor’s Executive Order 20-91 and the Pinellas County Board of County Commissioners’ Order.

Battaglia, Ross, Dicus, & McQuaid, P.A. is Here for You

The business attorneys at the law firm of Battaglia, Ross, Dicus, & McQuaid, P.A. are closely monitoring the coronavirus pandemic. We hope that you remain healthy and safe during these difficult times.

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Coronavirus and the Workplace

Caitlin Szematowicz — Wed, 25 Mar 2020 13:37:33 +0000

As of Monday, the Florida Department of Health confirmed one thousand four hundred and twelve (1,412) cases of COVID-19 in the State of Florida. Executive orders were issued last week which effectively shut down or significantly restrict bars, nightlife, gyms, and restaurants in Florida. On Friday, the Governor entered an executive order which provides that health care practitioners (such as dental offices, surgical centers, and hospitals) are prohibited from providing medically unnecessary, non-urgent, or non-emergency procedures or surgeries. More executive orders with additional restrictions may follow.

The Impact of the Coronavirus on Florida’s Workplace

The impact of the coronavirus on Florida’s workplace has been drastic and resulted in many closed businesses and employees who are out of work. Indeed, many businesses have closed or are facing imminent closures. Many businesses are transitioning to work remotely. Other businesses have remained open. Businesses which remain open should be establishing policies to reduce risk. Such policies may include ensuring that employees are practicing effective social distancing (the Centers for Disease Control and Prevention, also known as the CDC, recommends a six foot distance), enforcing restrictions on who can enter the office, encouraging employees to work remotely when possible, encouraging tele-conference meetings instead of in-person meetings, and/or changing office hours or employee schedules to reduce the amount of employees in the office at a given time. Many employers have questions about their responsibilities during this time, and it is important for employers to be aware of various employment laws which may apply in this scenario. For instance, the Occupational Safety and Health Administration (OSHA) requires employers to provide a work environment which is free from certain recognized hazards. Since coronavirus can be deemed such a hazard, employees with coronavirus should not be required to come into the office. OSHA also has guidelines in place for pandemics, and since the coronavirus has been declared a pandemic, employers should familiarize themselves with OSHA’s guidance.

How Should Employers Be Handling the Coronavirus at the Workplace?

Employers should be encouraging sick employees to stay at home and to seek medical care. Employers should also make their employees aware of available sick leave benefits. Further, employers should not generally terminate an individual who is diagnosed with coronavirus – or take any type of adverse action against that individual. Such action may be violative of the law and constitute retaliation. There are new developments each day which are aimed at providing assistance to employers and employees during these difficult times. Last Wednesday, the “Families First Coronavirus Response Act” was signed into law and will guarantee workers paid time off. Private employers with less than 500 employees generally must provide full-time employees with two weeks of paid time off if they cannot work for virus-related reasons. If the employee is taking time off to self-isolate/quarantine due to a diagnosis, is required to quarantine to comply with a recommendation or order because the employee is exhibiting symptoms or was exposed to the virus, or is seeking care or a diagnosis due to exhibiting symptoms of the virus, the employee is typically to be paid their normal pay. If the employee is taking time off to care for a family matter or child whose school has closed/childcare is unavailable, the employee should be entitled to two-thirds their regular pay. Part-time employees can be entitled to pay as well. The Act also amends the FMLA to give paid time off (at partial pay) if an employee cannot presently work due to the coronavirus. Lastly, the Act provides certain tax credits to businesses for costs associated with the Act. The provisions of this Act go into effect on April 1, 2020. On March 16, 2020, Governor Ron DeSantis also activated the Florida Small Business Emergency Bridge Loan Program to support small businesses impacted by COVID-19. On March 21, 2020, Governor Ron DeSantis announced that the Florida Department of Economic Opportunity (DEO) has approved the first two Small Business Emergency Bridge Loans in order to help businesses which have been impacted by the coronavirus. Additional legislation, executive orders, or announcements may be announced in the coming days to address the effect that the coronavirus is having in the workplace and to our community in general.

Coronavirus Unemployment Claims

With many American workers facing lay-offs, there has also been an influx of unemployment claims being filed. In fact, Florida’s Department of Economic Opportunity recently reported that over one hundred and thirty thousand (130,000) calls have been made to Florida’s unemployment agency in only four days. Yesterday, in an attempt to help remove barriers for those seeking reemployment assistance, the Florida Department of Economic Opportunity announced it has waived certain requirements for reemployment assistance. Further, when an employee is terminated, there are various contractual issues which may come into play. For instance, employees and employers may have questions concerning specific provisions in employment agreements (or, notably, the enforceability of those provisions). These questions may include whether advance notice is required to be provided to an employee before the employee can be terminated and what defenses may be available in this scenario (such as frustration of purpose and/or impossibility of performance) which supports the employer not needing to provide the contractually agreed-upon advance notice. Moreover, employers may elect to provide employees that they are terminating with severance packages. A severance package provides pay and benefits which an employee can be entitled to receive when he or she is terminated from employment by the employer. Typically, a severance package is provided in exchange for an employee releasing claims against his or her employer. Employers should always ensure they have a valid severance agreement in place. For example, if the employee is over the age of forty (40), an employer needs to ensure that its severance agreement is in compliance with the Age Discrimination in Employment Act of 1967 (ADEA), as amended. Likewise, employees who are presented with a severance agreement by their employer should have an attorney review the agreement to ensure their interests are adequately protected and to negotiate potential additional benefits or pay. The employment law attorneys at Battaglia, Ross, Dicus & McQuaid, P.A. hope that you remain healthy and safe during these times. We are always here for you.

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Employment Law in the #METOO Era

Caitlin Szematowicz — Mon, 22 Apr 2019 18:28:00 +0000

The #MeToo era initially addressed the issue of sexual harassment in politics and the entertainment industry. However, the movement has since shifted to the workplace. Claims of workplace harassment have greatly increased and many employers have changed their employment practices as a result. Historically, many employers required that claims of sexual harassment be handled in private arbitration. They also required that any settlement agreement concerning workplace harassment include confidentiality and non-disclosure provisions. Such requirements have recently drawn criticism from advocates of the #MeToo era, who argue that such mechanisms shield businesses from public scrutiny and allow the harassers to continue their behavior. To address these various concerns, numerous pieces of state and federal legislation have been enacted or proposed. In fact, over ten states have already passed laws which bar an employer from inserting a non-disclosure provision in workplace harassment settlement agreements. Further, several federal bills have been proposed to address the issue of sexual harassment in the workplace. The “Ending the Monopoly of Power over Workplace Harassment through Education and Reporting Act” would prohibit employers from requiring that an employee sign a non-disclosure or non-disparagement agreement concerning workplace harassment as a condition of their employment. The “Ending Forced Arbitration of Sexual Harassment Act” would render arbitration agreements signed by an employee unenforceable. This Act could be revolutionary since, if passed, it would likely invalidate most arbitration agreements signed between employees and employers. The “Sunlight in Workplace Harassment Act” further seeks to require companies to publicly report sexual harassment data. The law concerning tax deductions in the area of workplace sexual harassment or abuse has changed as well. In cases of workplace sexual harassment or abuse, where any payments (such as settlement, payouts, or attorney’s fees) are subject to a non-disclosure agreement, those payments are now deemed non-tax-deductible. In addition to various revisions or proposals in the law, many employers are also voluntarily addressing the issue of workplace harassment. Major companies such as Microsoft, Uber, and Google have already announced that they will no longer force their employees to private arbitration over sexual harassment claims. Many businesses are performing heightened background screening of job applicants for executive positions, revising their policies, adding workplace sexual harassment training, and revising the way they address the reporting and handling of such claims. In fact, many employers are also revising their employment agreements. Employers are now defining that termination for “cause” specifically includes sexual harassment. Inserting sexual harassment into the for “cause” definition provides an additional incentive to avoid any perception of sexual misconduct and further allows the employer to avoid paying severance and other benefits to sexual harassers. In summation, the #MeToo movement has greatly affected how employers respond to sexual harassment in the workplace. It is important for employers to consider updating their policies, providing sexual harassment training, and revising their employment and settlement agreements. Employers should take all steps necessary to prevent harassment in the workplace and respond properly if such an incident occurs or is alleged. Further, and importantly, employers should keep informed about any updates in this area of the law to ensure they are in full compliance.

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