New Year, New Legislative Session Greets Florida Employers

Florida’s 2020 legislative session convened today in Tallahassee. This session will be one to watch, as over 20 workplace-related bills have already been filed, covering such topics as discrimination and retaliation, minimum wage and overtime pay, pre-employment verification and background screening, reemployment assistance, tax credits and refunds, job relocation, job protections for medical marijuana users, paid family leave, and heat illness prevention.

Three of these bills may have a particularly large impact on Florida employers across many industries:

Medical Marijuana

Senate Bill (SB) 962 (Berman, D-31) and House Bill (HB) 595 (Polsky, D-81). This is the first bill filed in the Florida Legislature that would provide job protections for medical marijuana cardholders in Florida. The bill has a section covering public employers, the Medical Marijuana Public Employee Protection Act, and another section covering private employers, the Medical Marijuana Employee Protection Act. Both sections would prohibit “an employer from taking adverse personnel action against an employee or job applicant who is a qualified patient using medical marijuana” and require “an employer to provide written notice to an employee or job applicant who tests positive for marijuana of his or her right to explain the positive test result” and to confirm testing before taking adverse action if there is no response by the employee or applicant as to the result.

Importantly, employers would not be required to extend protections to positions with “safety-sensitive job duties.” An employer may also take appropriate adverse personnel action against any employee if it “establishes by a preponderance of the evidence that the lawful use of medical marijuana is impairing the employee’s ability to perform his or her job responsibilities,” particularly “if the employee displays specific articulable symptoms while working which decrease or lessen the performance of his or her duties or tasks.” “Safety-sensitive” is broadly defined to include “tasks or duties of a job which the employer reasonably believes could affect the safety and health of the employee performing the tasks or duties or other persons, including, but not limited to, any of the following:

1. The handling, packaging, processing, storage, disposal, or transport of hazardous materials.
2. The operation of a motor vehicle, equipment, machinery, or power tools.
3. The repair, maintenance, or monitoring of any equipment, machinery, or manufacturing process, the malfunction or disruption of which could result in injury or property damage.
4. The performance of firefighting duties.
5. The operation, maintenance, or oversight of critical services and infrastructure, including, but not limited to, electric, gas, and water utilities or power generation or distribution.
6. The extraction, compression, processing, manufacturing, handling, packaging, storage, disposal, treatment, or transport of potentially volatile, flammable, combustible materials, elements, chemicals, or any other highly regulated component.
7. The dispensing of pharmaceuticals.
8. The carrying of a firearm.
9. The direct care of a patient or child.”

Family Leave

SB 1194 (Cruz, D-18) and HB 889 (Davis, D-13). For employers, this is a less onerous version of the paid family leave bill filed by Senator Janet Cruz in the last legislative session. The proposed Florida Family Leave Act would require employers to allow employees who work an average of 20 or more hours per week and who have been employed for at least 18 months to take up to three months of paid family leave to bond with a minor child upon the child’s birth, adoption, or foster care placement. The prior version of the bill had called for six months of leave. This bill would also expressly prohibit employment discrimination on the basis of pregnancy, childbirth, or a medical condition related to pregnancy or childbirth, and provide for leave, maintenance of health coverage, reasonable accommodation, and job return rights for an employee who is disabled from pregnancy, childbirth, or a medical condition related to pregnancy or childbirth. This version of the bill may prove to be problematic for employers because it covers part-time employees without defining a look-back period for the 20-hours-per-week determination. It is also unclear how these requirements would interact with short-term disability benefits, as well as how spouses/parents who work for the same employer would be treated.

Heat Illness Prevention

HB 513 (Smith, D-049) and SB 882 (Torres, D-015). This is the first bill that would require Florida “employers in industries where employees regularly perform work in an outdoor environment, including, but not limited to, agriculture, construction and landscaping,” to provide drinking water, shade, and annual training to employees and supervisors. Such provisions could place a strain on small businesses, particularly those with multilingual workplaces. The bill would further require the Florida Department of Agriculture and Consumer Services and the Department of Health “to adopt specified rules.” The requirements would give teeth to similar heat illness prevention guidance published by the federal Occupational Safety and Health Administration.

Below is a brief summary of the other workplace-related bills.

Discrimination and Retaliation

• Discrimination in Labor and Employment (HB 739 (Thompson, D-44) and SB 90 (Stewart, D-013)). This bill would create the Senator Helen Gordon Davis Fair Pay Protection Act, “prohibiting an employer from providing less favorable employment career advancement opportunities to employees based on their sex.”
• Florida Competitive Workforce Act / Prohibited Discrimination (SB 206 (Rouson, D-19) and HB 161 (Toledo, R-60; Webb, D-69)). This bill would add “sexual orientation and gender identity as impermissible grounds for discrimination in public lodging establishments and public food service establishments,” while “providing an exception for constitutionally protected free exercise of religion.” HB 161 would also revise the purpose of the Civil Rights Act “to include sexual orientation and gender identity.”
• Whistleblower’s Act (SB 450 (Brandes, R-24)). This bill would revise the short title and legislative intent of the Whistleblower’s Act, change references in all instances of “adverse action” to “retaliatory action,” and revise the definition of “employee” to include applicants. The bill further expands the definition of “protected activity” and the time for a charging party to bring suit following notice by the Florida Commission on Human Relations to 180 days.
• Creating a Respectful and Open World for Natural Hair Act (CROWN Act) (SB 566 (Bracy, D-11) and HB 761 (Brown, D-45)). This bill would add “protected hairstyle” (defined as “hair characteristics historically associated with race, such as hair texture and styles, including, but not limited to, braids, locks, or twists”) “as impermissible grounds for discrimination with respect to specified unlawful employment practices.”
• Florida Civil Rights Act (FCRA) (SB 644 (Braynon, D-35) and HB 635 (Watson, D-107)). This would prohibit “discrimination on the basis of height or weight” in public lodging and food service establishments and similarly revise the general purpose of the FCRA.
• Pregnant Employees (HB 795 (Joseph, D-108)). This bill would prohibit “certain unlawful employment practices against specified [pregnant] employees and job applicants; requiring an employer to provide a written notice of certain rights to employees and post such notice in conspicuous places on its premises.”

Employee Compensation

• Minimum Wage (SB 456 (Rodriguez, D-37) and HB 691 (Jacquet, D-88)). This bill would revise “the formula for the adjusted state minimum wage” by “increasing the state minimum wage by the rate of inflation for the 12 months preceding September 1 of that year plus 80 cents. Beginning September 30, 2028, and each September 30 thereafter, the Florida Department of Economic Opportunity [would be required to] increase the state minimum wage by the rate of inflation for the 12 months preceding September 1 of that year.”
• Overtime Pay (SB 1436 (Torres, D-15)). This bill, which would require an employer to pay a salaried employee who makes less than $51,064 per year overtime pay for hours worked over 40 in a workweek at a rate not less than time and one-half the employee’s regular rate of pay, also provides for related adjustments.
• Wage and Employment Benefits Requirements (SB 1520 (Rodriguez, D-37)) and (HB 6065 (Smith, D-49)). This bill would repeal Section 218.077, Florida Statutes, removing provisions prohibiting establishment of minimum wage and employment benefits requirements by political subdivisions.
• Employer Contributions for Reemployment Assistance (SB 1356 (Bean, R-4)) and (HB 1253 (McClure, R-58)). This bill would reduce the initial rate that certain client companies of employee leasing companies must pay under specified circumstances to tax collection service providers and would provide for related adjustments.

Employment Conditions

SB 1126 (Gruters, R-23) and HB 305 (Rommel, R-106). This bill would prohibit “a political subdivision from establishing, mandating, or otherwise requiring an employer to offer conditions of employment which are not otherwise required by state or federal law.” This would eliminate local wage theft ordinances and similar employment regulations currently in place at the county and city levels.

Pre-employment Verifications

• Verification of Employment Eligibility (SB 664 (Lee, R-20)). This bill would require “employers to register with and use the E-Verify system beginning on a specified date to verify the employment eligibility of new employees” and require “the Department of Economic Opportunity to suspend an employer’s license under certain circumstances.”
• Background Screening (HB 473 (Omphroy, D-95)) and SB 616 (Powell, D-30)). This bill would prohibit “employers from excluding applicants from an initial interview for employment” based upon certain criminal convictions.

Workforce Retention

SB 1732 (Torres, D-15). This bill, dubbed the “Florida Jobs Retention Act of 2020,” would require covered employers that intend to relocate one or more of their facilities comprising at least 30 percent of the business out of state, or to cease operation, to notify the Department of Business and Professional Regulation at least 180 days before such relocation or cessation. “Employer” is defined as “a business enterprise that: (a) has been in operation in [Florida] for at least 6 months; (b) employs 75 or more individuals who, in the aggregate, work at least 1,500 hours per week, not including hours of overtime, for the purpose of providing customer service or conducting back-office operations; and (c) receives any direct or indirect state grant, state guaranteed loan, or state tax benefit.” Failure to provide the required notice could result in civil penalties of up to $10,000 per day for each day the employer failed to provide the notice.

Tax Credits and Refunds

• Internship Tax Credit Program (SB 642 (Powell, D-30)). This bill would designate the Florida Internship Tax Credit Program and provide “a corporate income tax credit for qualified businesses employing degree-seeking student interns.”
• Sales Tax Refund (SB 654 (Lee, R-20)). This bill would provide “a sales tax refund for eligible job training organizations.”

A version of this article was previously published in the January 2020 issue of HR Tampa Newsletter.