Is The Employee Religious Exemption Or Reasonable Accommodation Provision Process The Same In Every Florida County?
Here in Florida, yes, the religious exemption or reasonable accommodation provision process is the same in every county. Now, each county may have certain local health and safety welfare rules, but as far as claiming a religious exemption or reasonable accommodation under the ADA or Title 7, they’re all analyzed in every single county in the state of Florida.
The reason is because we have Title 7 of the Civil Rights Act of 1964 as the federal statute, and in Florida, we have what’s called the Florida Civil Rights Act, which is almost verbatim Title 7’s state counterpart. So you have state and federal laws on the matter which are almost identical. In fact, they are so similar on these issues that the Florida court system has ruled that federal case law can be used to interpret the state law of Florida. Generally, you can’t mix the two, but in this particular situation you can, because they’re almost verbatim the exact same law.
Therefore, Title 7 covers everyone at the federal level and the Florida Civil Rights Act covers everyone at the state level. That pretty much covers everybody, and every county in the state of Florida can claim the exemption in a unified way.
Are There Any State Or Federal Protections If An Employee Refuses To Come To Work For A Fear Of Infection Of COVID-19?
This is a good question, and the answer essentially is, “It depends.” Let’s say your employer is just being blatantly negligent in protecting their employees—like, for example, if they’re demanding that you not get the vaccine or that you come to work if you’re COVID positive. In that case, the employer is doing things that are obviously unsafe for their employees, and there might be a general negligence issue at hand.
However, except in these clear cases, there aren’t really many state or federal protections. If an employee decided not to come to work out of fear that they may get sick, it is not necessarily distinguished from a “no-call, no-show”, who the employer then has a right to terminate. In fact, since Florida is an at-will state, the employer has a right to terminate them for virtually any reason.
To illustrate how at-will employment works, I usually refer to it as the White Shoes after Labor Day rule. You could be fired for just about anything an employer wants to fire you for—even for wearing white shoes after a Labor Day. As ridiculous as that is, it would be a valid, lawful reason to fire someone in the State of Florida.
Therefore, if employees don’t show up because they’re fearful that they may get the virus, they could still be terminated, and there aren’t generally any protections for that. Now, if they do have COVID and they don’t want to show up, that’s a different story. If they are symptomatic and are having issues with COVID-19 and can’t show up, they may be protected under the Family and Medical Leave ACT (FMLA).
What Do I Do If My Employer Refuses To Provide Me Sick Leave During The COVID-19 Pandemic For Reasons Related To Exposure To The Virus Or A Positive COVID-19 Result?
Generally, if you work for an employer for long enough, you qualify for the protections of the FMLA (Family and Medical Leave Act). Under the provisions of that Act, your employer has to give you at least 12 weeks of unpaid leave if you need it for any serious health condition.
Now, the question is, is COVID- 19 considered a serious health condition? FMLA does not cover just any illness. Usually, if you come down with the flu, you cannot use FMLA time for it, since it is not considered a serious enough health condition.
However, COVID is a little bit different. Again, the law is unsettled in this area and will inevitably work itself out through the court system. Until then, however, the way I have come to understand it is that it comes down to a question of whether or not the person is symptomatic or asymptomatic. In other words, if you catch COVID and have a mild case—that is, you’re at home and you aren’t having serious symptoms, issues, or problems—one could argue that since you’re asymptomatic, you don’t have a serious health condition and you’re not protected under the FMLA. The other side of the argument is that COVID is a novel virus that is potentially deadly, and that therefore it is covered.
This is one of those arguments that could go either way. However, I tend to believe that the courts are going to find that just testing positive for COVID should be considered a serious health condition. It’s unique in that even if you’re asymptomatic, COVID may not be a serious health condition to you personally, but you’re still able to pass on the virus to other people, which could be a serious health condition for them.
If the courts realize that the alternative to giving people FMLA for is going back to work, where the employee could expose other people who could then get it and possibly die, they will extend FMLA officially to cover asymptomatic COVID. Judging by the legislative history of the Florida courts and by the FMLA expansion that happened earlier in the COVID pandemic, I suspect that they will claim that even if you are asymptomatic, if you test positive for COVID, you will be protected under the FMLA Act for a serious health condition. Of course, having something count as FMLA doesn’t mean your employer has to pay you for that time, per se. However, you would have protected leave.
FMLA only applies to certain types of employees, but for those to whom it applies, it is the main protection.
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