Paul Donnelly, Partner with Donnelly and Gross, is a problem solver dedicated to helping his clients save money and avoid litigation. He has extensive experience representing clients in virtually every aspect of labor and employment. He is a seasoned advocate in litigation and alternative dispute resolution (ADR), with more than 27 years of experience appearing before federal and state trial and appellate courts, administrative agencies, local government boards, special magistrates, arbitrators, and mediators.
Every day, he thinks, reads, writes and argues on behalf of his clients, so they can focus on other aspects of their business. He speaks with experience and sincerity to counsel clients on successful strategies to deal with legal problems encountered in the workplace. An employer himself and an arbitrator, too, he helps each client find the best solution whether in the courtroom or through arbitration, mediation, or settlement.
In litigation, he particularly enjoys deposing key witnesses, and has succeeded in many cases based simply on the information obtained in deposition. Paul protects small businesses, national corporations, professionals, and highly paid executives on employment law issues. In the public sector, he protects fire-rescue, law enforcement, and other public servants associations, 501(c)3 benevolent organizations, and pension funds. He is also a long-term Adjunct Professor who enjoys teaching Trial Practice skills to third year law students at the University of Florida.
Paul is a Fellow in the College of Labor & Employment Lawyers, which is the highest distinction in the field. From 2008-14, Paul served on the Judicial Nominating Commission for the Eighth Judicial Circuit of Florida, in part as Chair, by appointment of the Governor and from 2014-2017, he served on The Florida Bar, Grievance Committee, in part as Chair.
Connect with Paul on LinkedIn.
Transcript
Intro: [00:00:07] Broadcasting live from the Business RadioX Studios in Tallahassee, Florida, it’s time for Florida Home Builders Radio. Now, here’s your host.
Stone Payton: [00:00:23] Welcome to another exciting and informative edition of Florida Home Builders Radio. Stone Payton here with you this afternoon. Our guest today is Partner/Owner with Donnelly + Gross Employment and Labor Attorneys. Mr. Paul Donnelly. Good afternoon, sir.
Paul Donnelly: [00:00:41] Hey, there. I appreciate you having me.
Stone Payton: [00:00:44] Well, we are delighted to have you on the show and looking forward to getting some answers to questions that a lot of us have been asking, particularly lately. But before we go there, can you share with us just kind of your affiliation, your association, in general, with the Florida Home Builders Association and maybe your local home builders association?
Paul Donnelly: [00:01:06] Yes, certainly. We’re members. We are particularly active in the local association, which is the Builders Association of North Central Florida, which covers many of the counties in North Central Florida. And we do quite a bit of work helping member businesses with their employment issues. And I’ve been doing so for many years.
Stone Payton: [00:01:26] Well, as a business media platform here at Business RadioX, and I know as an association at the state level, we’re getting more questions than ever around, I think, this whole domain of employment and labor law. What kind of questions are you finding yourself fielding more and more here in the last few weeks?
Paul Donnelly: [00:01:49] Well, it’s amazing because we are getting some very similar questions, but then these circumstances are so fluid and ever changing, and they can be very different depending on the different circumstances. Some of the questions we’re getting are, what steps should employers be taking? How much information can you require an employee to share with you as their employer? Can employers refuse to come to work because they’re afraid of being exposed to COVID-19 and stuff like that? I can certainly go through the answers to those with you.
Stone Payton: [00:02:20] Well, I’d love the answers to those three. And there’s probably a half a dozen more of. I hadn’t really thought about that last one. Can they say, “Look, I’m not coming to work. I don’t want to put me or my family at risk”? Yeah, walk us through what they can and can’t do. And maybe, also, give us some guidance on, as employers, how we should handle that.
Paul Donnelly: [00:02:41] Yeah, it’s a question we’re getting a lot. So, can an employee refuse to come to work because they’re afraid of being exposed to COVID-19? The answer is, usually, never can they refuse. If you’ve got work form, they need to work. Now, under OSHA, employees can refuse to come to work or perform certain tasks if they believe they are in what the law calls imminent danger, which means employees must believe that there’s death or serious physical harm that could occur, and that such, that kind of threat is immediate or imminent. And most working conditions will not rise to that level.
Paul Donnelly: [00:03:22] So, our advice is, then, if you have work for the employees, they can’t refuse to come to work because they fear exposure or reliance on the safer at home order. We’re talking essential work, work that’s allowed to be performed. And the idea here in the economy is to keep people working and business running.
Stone Payton: [00:03:47] Now, the other side of that coin, what if the employee is already presenting with COVID-19? There’s probably a whole set of circumstances and guidelines around that, right?
Paul Donnelly: [00:03:58] Well, yeah. You have the ability to send that person home and not have them around the workplace. Now, the next question is going to come from the new federal law that was enacted several weeks ago that actually became effective April 1, the Families First Coronavirus Response Act. That’s the one that requires up to two weeks of pay for people who meet certain criteria. If someone is simply symptomatic, they may have the symptoms, but they’re not seeking medical advice, they’re not under a quarantine order from the Department of Health or from a health care provider, then they’re not going to qualify for that paid leave that the employer is required to pay up to certain caps, but they get reimbursed through tax credit.
Stone Payton: [00:04:51] So, how do I know the employee has COIVD-19? And am I allowed to find out?
Paul Donnelly: [00:04:59] Right. So, here’s the steps an employer should take. So, let’s look at it sort of from top to bottom. Inform employees about the COVID-19 symptoms – fever, chills, cough, shortness of breath, sore throat. And you probably have seen and I know many of our members have seen the posters that are available from OSHA that you can just download them off the internet, but those kinds of things are very helpful to post or give to the employees with e-mail or however you communicate with them. Tell them not to come to work if they have any of those symptoms. Send them home if they’re experiencing those symptoms. And remember that employees only get the emergency paid sick leave that I was talking about if they are both experiencing the symptoms and seeking a medical diagnosis.
Paul Donnelly: [00:05:46] I think you also can take proactive steps to detect the workplace and comply with OSHA. So, does the workplace institute social distancing, face mask, monitoring of symptoms, hand-washing, increase the routine cleanings, particularly in high traffic, and common areas, and workstations, modified visitor policies? When you do find someone who has the symptoms or, for example, when you know, if they got a positive test, it’s important to trace out. You have the right to send folks home who may have been exposed and have them stay away for 14 days. So, if they’ve been around the co-worker for close proximity for like more than 10 minutes, you would have the ability to send them home too to reduce further exposure that took place.
Stone Payton: [00:06:43] All right. So, any way this thing shakes out, I, as a contractor, or developer, anybody in this ecosystem, I’m going to eat some cost here. I mean, is that just the end of the story and that’s just the way the cookie crumbles? Is there some relief or some path to somehow get something? Because I’m doing everything from buying sanitizer, providing masks, to eating this required leave times. Is there any relief at all for me?
Paul Donnelly: [00:07:10] Well, there is for that relief time and if somebody is out on that paid sick leave because they meet one of the qualifying circumstances. And I’m just giving examples. Quarantine from the authorities. And by the way, the stay at home orders can possibly qualify that, but not for essential workers, but the quarantine, or you’ve got the symptoms, and you’re seeking diagnosis, or you’ve tested positive, those kinds of things, that paid leave that the employers are required to give, employers of 500 or less, you can get a tax credit for that on your next tax deposit where you send in your withholding, and FICA, and those taxes. And you get a credit for that, plus health insurance that you may have kept the employee on while they’re on that leave.
Paul Donnelly: [00:08:05] So, the idea is you’re supposed to get that money back. And what happens if you paid too much more in sick leave benefit than what your tax is, you can apply for a refund or for the credit for that. So, that’s the idea behind this law is you’re supposed to break even on that, but you’re not going to break even on all that other stuff like the hand sanitizer, and all that, and all those other efforts.
Stone Payton: [00:08:31] That’s just part of. That’s the cost of doing business. Okay. So, what if we switch gears a little bit here, and I’ve got a family member, and I’ve got to have some space to take care of them. Is there some room for that in any of what we’re talking about?
Paul Donnelly: [00:08:47] Yeah, there is. You know what? Let me just mention this to you, because to that last question, this is a real financial squeeze in what help is there. There is a provision in the law, and this relates to your next question about, what if I’m caring for a family member or something like that. A child, schools are closed, and you have to provide child care. In that situation, there is a provision that allows employers of 50 or less, it’s like a small business exemption, but you’ve got to keep really good records on this if you can establish that your business is substantially affected financially by that and you can demonstrate the hardship.
Paul Donnelly: [00:09:37] And I can drill into all those specifics now or we do another call, if you’d like. But there is a provision that allows small businesses to opt out of paying the sick leave for child care when schools are closed, or if you have a daycare that’s closed, or a child care worker who maybe is not able to come to your home if the childcare was done in your home or something like that. If you’re out for that reason, this law requires that the pay be two/thirds, not 100%. So, the sick leave is a little bit lower, and you’ve got that small business exemption that’s potentially available to employers.
Stone Payton: [00:10:28] So, when I have you on the bat phone like this, and I ask the question, and you have an answer, even if you didn’t have an answer, I suspect you could run down the hall and get it pretty quick, it’s very comforting. But if I’m out in the wild, and I’ve got these kinds of questions, in your work with your existing clients, is there some sort of – I don’t know – job aid, ongoing checklist, employment law bible or like I say, a bat phone? What is the best way to stay prepared and stay equipped to not get caught behind the eight ball on some of these issues?
Paul Donnelly: [00:11:04] Well, I’ll tell you, the Department of Labor has done a pretty good job of putting information up on its website, and the summaries are real good. For example, you want to know about the specifics in a real easy-to-understand way about this paid sick leave part, if you just Google Department of Labor notice posting COVID, just words like that, it’ll be the first item that comes up on your Google search, and you can click on that, and they’ve got a one page notice that you, also, by the way, are supposed to be notifying your employees of their rights under this new law. And so, that notice, you can read that, and it’s very plain English, and it’s fairly straightforward. Plus, you could download it and post it, so you can satisfy the posting requirement.
Paul Donnelly: [00:11:58] So, the Department of Labor is really good, but there’s still some gray areas and it’s a fast-moving fluid situation. So, the law was enacted, I don’t know, something like four weeks ago, and it was enacted to go into effect. It read like it was going to go into effect April 2nd, but the Department of Labor issued guidance is going to be April 1, and the Department of Labor pretty much every week has sent out guidance as most recently as last Friday. So, it’s really kind of tough to have the up-to-the-minute stuff.
Paul Donnelly: [00:12:37] And there’s disagreement among lawyers about some of these. There’s some disagreement, for example, about whether the total amount of leave you get under this law is for two weeks, plus do you get 12 weeks under the Family Medical Leave Act to make it 14 weeks? So, there’s really even some disagreement among lawyers. So, what we try to do is look at, what’s the best practice? What’s the safest course of action for people to take? But just Googling it on your phone if you’re out there in the field on a job site, that’s a good way to get answers.
Stone Payton: [00:13:14] All right. So, setting this whole COVID-19 thing aside, I mean, I feel a little bit like the guy who has a heart attack and says, “Yeah, I really got to stop drinking so much scotch and lay off the cigars.” I feel a little bit like a COVID-19 does sometimes something like that where it will sort of jolt you into re-engaging in what you know are best practices. So, setting all that aside, just day-to-day, being a conscientious enterprise wanting to take care of your employees, and being smart about the investments that you’re making, and the managing your risk, are there just some basic dos and don’ts when it comes to trying to comply with employment, and labor law, and maybe with respect to having some sort of ongoing relationship with someone who has specialized knowledge and expertise like you guys?
Paul Donnelly: [00:14:10] I think it’s really important to do that because I don’t think you should reinvent the wheel. Myself and other lawyers who do this type of work and specialize or focus in this area are ready, willing and able to help just pick up the phone calls, and we’ll get these things answered for you based on your unique circumstances. But the best practice, take away without taking the step to calling a lawyer or other specialist in this area, is to send that notice out. Post that notice that I told you about right there on the Department of Labor’s website. Make sure to follow the OSHA requirements and the guidance of the CDC.
Paul Donnelly: [00:15:01] If people seem symptomatic, then I think that’s something. You can send the employee home. Send home all employees who worked closely with that employee to ensure the infection doesn’t spread. Have them stay home until 14 days after the last exposure, which is what the CDC recommends. Ask the employee to identify all individuals they’ve worked in close proximity with; meaning like real close physically for ten minutes or longer. You want to know that for 48 hours or two days before the symptoms came up. Don’t identify the name of the infected employee if you can help it. Now, that may be somewhat unavoidable, obviously. And then, last, I’d close off areas used by the person who was ill and wait as long as you can to go back and clean and sanitize it. I think those are some really, really smart steps to take.
Stone Payton: [00:16:03] Well, no, that’s very helpful. Thank you for that. If our listeners would like to connect with you or somebody on your team and have a more substantive conversation about any of these topics or the range of topics that I suspect would fall under this umbrella of employment and labor law, what is the best way for them to connect with you guys? An email, a phone number, LinkedIn, a website, whatever you feel like is appropriate.
Paul Donnelly: [00:16:30] Yeah. Any of those is fine. You can find me on LinkedIn. Probably, the best way to get access to us is to just go to the website, which is donnellygross.com. And that’s got all the contact info. You can just click a link to email. Phone number, 352-374-4001. Those are all good ways to reach out and we’ll make sure to help.
Stone Payton: [00:17:04] Paul Donnelly with Donnelly + Gross, thank you so much for investing the time to share this information with our members. We sincerely appreciate it. And yeah, as we mentioned earlier in the conversation, as fluid as this situation is, with your permission, we may reach back out and have you update us on some of these topics or new ones that we don’t even know about yet, if you’re up for that, okay?
Paul Donnelly: [00:17:28] I’m very up to it. And I really do appreciate what you all are doing to get all this information out to the members. It’s really, really important.
Stone Payton: [00:17:36] Well, it’s been an absolute delight having you on the show. And for our listeners out there, if you have additional questions on this topic, or if you have questions about other topics, and you would like us to source a subject matter expert to talk about this and keep you informed, let us know, and we’ll do everything in our power to get to them and put them on the show. Until then, this is Stone Payton for our guest today, Paul Donnelly, the Florida Home Builders Association, and everyone here at the Business RadioX family saying we’ll see you next time on Florida Home Builders Radio.
About FHBA
Established in 1947, the Florida Home Builders Association (FHBA) strives to create a climate in which the construction industry can prosper. FHBA is affiliated with the National Association of Home Builders and is home to twenty-three local home builders’ associations across the state.
Together, the association works create the best possible economic and regulatory environment for member success through superior lobbying efforts, educational forums, and providing members with networking and a comprehensive menu of products and services.
