Vaughn Glinton(left) and Leonard J. Dietzen III(right) of Rumberger, Kirk & Caldwell.

Currently, the Florida legislature is brewing with bills that will have an impact on Florida's employers if they become law. These bills cover a wide variety of issues including parental leave, medical marijuana, gender identity, sexual orientation and race discrimination. If passed, new legislation will take effect on July 1, with the exception of medical marijuana bills, which would be effective immediately. Employers should take a closer look at policies to ensure they are compliant or risk potential litigation.

Florida Family Leave Act

The proposed Florida Family Leave Act (SB 1194 and HB 889) requires employers to permit employees who work an average of at least 20 hours per week, and who have been employed for at least 18 months with the company to take up to three months of paid leave after the birth, fostering or adoption of a child.

The federal Family and Medical Leave Act (FMLA) allows 12 weeks of unpaid leave under the same circumstances. Stipulations include that leave under the Florida Family Leave Act must be taken concurrently with leave taken pursuant to the FMLA, so there is not any additional burden for lost productivity on employers.

According to a 2016 Fortune-Morning Consult poll, 74% of registered U.S. voters said they support requiring employers to offer paid parental leave for new parents. Separately, a 2017 Pew Research Center study showed 82% of Americans agreeing that mothers should have paid maternity leave.

While there is wide support among voters for paid family leave, there is no indication in the bill as to who pays for it. In an interview with WTSP-Channel 10 in Tampa, Sen. Janet Cruz, the sponsor of the Senate Bill 1194, suggested a payroll deduction allowing employees to put money aside to pay for their leave.

If Florida lawmakers determine that employers have to shoulder the burden, Florida businesses may face some financial hurdles. For example, the employer would have to pay the absent employee while she is on leave in addition to overtime, or temporary help to cover the work of the individual on leave. Businesses could also feel the impact from additional payroll taxes or other costs required to cover the leave.

Florida Medical Marijuana Employee Protection Act

Just as other states have expanded medical marijuana users' rights, the Florida legislature is also taking a look at further protections for this class of employees. House Bill 595 and Senate Bill 962, both titled the Medical Marijuana Employee Protection Act, will afford sweeping rights to Florida employees using medical marijuana in both the public and private sectors.

The proposed law would afford new employment rights for both applicants and employees, including the right to sue employers if an adverse personnel action is taken against an employee because of his status as a qualified medical marijuana patient. The only exception relates to jobs involving "safety-sensitive" duties including, but not limited to, teachers, school bus drivers, pharmacists, police and firefighters.

Both bills define safety-sensitive as tasks or duties of a job in which the employer reasonably believes could affect the safety and health of the employee performing the tasks or duties of other persons.

The new law will require employers to demonstrate, and rather extensively, that the employee's ability to perform his job duties is being impaired by the lawful use of medical marijuana. This will be a laborious undertaking. If the employer fails to prove impairment, the employee can obtain injunctive relief (such as job reinstatement), money damages and an award of costly attorney fees.

Key areas employers will need to consider are job descriptions and drug testing policies. Most employers do not have detailed job descriptions, which can be an issue when defending against these types of cases and drug testing is always a legal minefield. Proactive review and audit of policies and job descriptions will ensure the employer will be ready for this new law. This will also help comply with existing laws for drug testing.

The Florida Competitive Workforce Act

The Florida Competitive Workforce Act (SB 206 and HB 161) prohibits employers from discriminating against employees and applicants based on their sexual orientation and gender identity. Currently, neither federal nor Florida law prohibit these types of discrimination.

Florida is not alone in looking at protecting this class of employees. According to the Movement Advancement Project, there are over 20 states and the District of Columbia that have passed laws prohibiting discrimination based on sexual orientation and gender identity.

Concurrently, the U.S. Supreme Court (SCOTUS) heard oral arguments in October 2019, involving whether or not Title VII protects employees from discrimination based on sexual orientation and gender identity. The court has not yet rendered an opinion.

Regardless of the Supreme Court's decision, if Florida passes the Competitive Workforce Act, employees will have a remedy to sue in state court. Additionally, if SCOTUS rules that sexual orientation and gender identity are protected under Title VII, then employees will also have protections under federal law.

In anticipation of the SCOTUS decision and Florida's proposed legislation, employers can stay ahead of the curve by reviewing employee handbooks, training and orientation materials to be aware of any approaches that have the potential to be deemed discriminatory.

The Florida CROWN Act

The Florida CROWN Act (SB 566 and HB 761) protects workers and students from discrimination based on hair characteristics historically associated with race, such as hair texture and styles. The CROWN Act is intended to eliminate workplace and school dress code policies that prohibit natural hair, including afros and certain hairstyles, such as braids, twists and locks, which have traditionally had a disparate impact on African Americans. According to a study conducted by Dove, a staunch supporter of this act, "Black women are 50% more likely to be sent home or know of a black woman sent home from the workplace because of her hair." New York and California have passed similar legislation. Should Florida follow suit, employers will need to review their grooming policies to ensure they are in compliance.

 

Vaughn Glinton Jr. focuses his practice in the areas of employment and professional liability in the Orlando office of RumbergerKirk. Leonard Dietzen concentrates his practice on the representation of private and public sector employers in the firm's Tallahassee office.