Former Judge Terry Lewis Joins Firm

The law firm of Messer Caparello, PA, is pleased to announce that Terry Lewis, who recently retired after 30 years as a trial judge, has become of counsel with the firm and will focus on mediation and arbitration.

Mr. Lewis was a general practitioner for 12 years before his election to the county court in 1988. He was appointed to the circuit court in 1997 where he served until 2019, handling countless cases of every variety in all divisions of the court. During his judicial career, Mr. Lewis was heavily involved in judicial education. He served as faculty for numerous courses, as chair of the education committees for both the County and Circuit Court Conferences, and as dean of the Florida College of Advanced Judicial Studies. He has also been an adjunct professor at the F.S.U. College of Law for several years, teaching Evidence, Florida Civil Practice, and Professional Responsibility.

Mr. Lewis was named Judge of the Year by the Florida Law Related Education Association in 1993 and 2013 and Trial Judge of the Year by the American Board of Trial Advocates, Tallahassee Chapter, in 2000.

We’re excited to have Terry to join us at the firm where he will use his extensive experience and knowledge to help parties resolve their disputes.

Selected Highlights of Families First Coronavirus Response Act (FFCRA) (March 19, 2020)

On March 18, 2020, President Trump signed the Families First Coronavirus Response Act (FFCRA) into law. Here are some highlights of the Act for employers:

FFCRA

  • takes effect: April 1, 2020
  • three major provisions for employers:
    • amends FMLA
    • establishes paid sick leave requirement
    • provides for tax credits for employers

Emergency Family and Medical Leave Expansion Act

  • Employers covered:
    • if have less than 500 employees
  • Employees covered:
    • if employed at least 30 days
  • Triggering Event for Benefit:
    • unable to work or telework due to need to care for employee’s child (under 18 years old) because child’s school or place of care is closed due to a public health emergency
  • Benefit:
    • 12 weeks of job-protected leave
    • 1st 10 days of leave may be unpaid
    • remainder of leave must be paid at two-thirds the employee’s regular rate
    • however, paid leave is capped at $200/day and $10,000 aggregate per employee
    • job restoration entitlement may not apply to small employers (less than 25 employees) under some circumstances

Emergency Paid Sick Leave Act

  • Employers covered:
    • if have less than 500 employees
  • Employees covered:
    • all full-time and part-time employees (regardless of length of employment)
  • Triggering events:
    1. Employee is subject to a federal, state or local quarantine or isolation order related to COVID-19;
    2. Employee has been advised by a health care provider to self-quarantine due to COVID-19 concerns;
    3. Employee is experiencing COVID-19 symptoms and seeking medical diagnosis;
    4. Employee is caring for an individual subject to a quarantine or isolation order or who was advised by a health care provider to self-quarantine due to COVID-19 concerns;
    5. Employee is caring for a son or daughter because the child’s school or place of care is closed or unavailable due to COVID-19; or
    6. Employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.
  • Benefit:
    • Full time employees entitled to:
      • 80 hours of paid sick leave at employee’s regular rate – for reasons 1, 2 and 3
      • 80 hours of paid sick leave at two-thirds of the regular rate – for reasons 4, 5 and 6
    • Part-time employees entitled to:
      • Paid sick leave based on average number of hours worked during the prior 6 months
  • Caps on paid sick leave:
    • Capped at $511/day and $5,110 total per employee for reasons 1, 2 and 3
    • Capped at $200/day and $2,000 total per employee for reasons 4, 5 and 6
  • Other provisions:
    • Sick leave does not carry over to following year

Tax Credits for Paid Sick and Paid Family and Medical Leave

  • Employers entitled to payroll tax credits for payments made to employees

The foregoing is merely a summary of some of the primary provisions of the Act which apply to employers generally. There are many other detailed provisions that are not set forth here. If you have a particular question regarding how the FFCRA applies to you and your employees in particular, you should contact your legal counsel for advice.

For more information, contact:

James J. Dean, Esq.

jdean@lawfla.com

850-222-0720

Are Opening Prayers at School Board Meetings Constitutional?

It is common in Florida for School Boards to open their meetings with a prayer or invocation. The practice lends a sense of solemnity to the meeting and can help to engender a positive atmosphere for discussion and decision-making. However, the practice of opening meetings with a prayer is being increasingly challenged in the courts as a violation of the Establishment Clause of the federal constitution.

On July 8, 2019, the federal Eleventh Circuit Court of Appeals (which covers Florida, Georgia and Alabama) issued a decision which will have important implications for School Boards and Superintendents in Florida. In Williamson v. Brevard County, a case filed by a group of Secular Humanists and atheists, the court held that Brevard County’s practice of opening its county commission meetings with prayer violated the Establishment Clause. The court made clear in its decision, however, that not all opening prayer practices are invalid. Much depends on the process used to select the persons who will offer the invocation.

In the Brevard County case, the individual commissioners took turns selecting the person to give the invocation. There were no clear guidelines to follow. Instead, each individual commissioner had broad discretion regarding who they would select. In practice, the commissioners selected representatives from only mainstream, monotheistic, faiths. They excluded other religious groups from consideration. For example, they categorically excluded deists, Wiccans, Rastafarians and polytheists, and they would likely exclude Hindus, Sikhs or followers of Native American religion. The court held that this violated the Establishment Clause because the commissioners were excluding certain religious groups based on the content of the groups’ religious beliefs.

Although the court held that Brevard County’s practice was a violation, the court also clarified that not all opening invocations are invalid. The court explained that just because an opening invocation is religious, or even sectarian, does not mean there is a violation – provided the selection process is neutral and does not discriminate against certain religious groups based on their beliefs.

School Boards and local governmental agencies that open their meetings with prayer should review their policies to ensure that their criteria and selection process is compliant with the principles set forth in the Williamson v. Brevard County decision.

Case Information: Williamson v. Brevard County, Case No. 17-15769, 2019 WL 2910807 (11th Cir. July 8, 2019).

For more information, contact:

James J. Dean, Esq.

jdean@lawfla.com

850-222-0720

Employee Medical Leave Requests: Balancing the FMLA and ADA

When employees request a leave of absence due to medical issues, the Family and Medical Leave Act (FMLA) requires covered employers, those with 50 or more employees, to provide employees twelve weeks of unpaid leave for qualifying medical reasons. However, what if an employee needs more than twelve weeks of leave? Or, what if an employee has already used all of the employee’s FMLA leave for the year but needs more time off? Is the employer required to grant long periods of medical leave to employees in these circumstances? That question was recently addressed by two federal courts of appeal. Continue Reading →

2017 In Review: Amendment 7 and the End of Peer Review Protection

Amendment 7 to the Florida Constitution provides patients “a right to have access to any records made or received in the course of business by a health care facility or provider relating any adverse medical incident.” Under Amendment 7, an adverse medical incident includes “any other act, neglect, or default of a health care facility or health care provider that caused or could have caused injury to or death of a patient . . . .” Continue Reading →

Credit Balances – It’s Not Yours to Keep

Most health care providers are familiar with the concept of a “credit balance”. A credit balance can occur when a health care provider is overpaid for a service that was provided. Sometimes the credit balance can occur when a patient or the patient’s third-party insurer pays too much for the service provided. Other times a credit balance may occur when there is more than one insurer and both insurers pay for the same service. For a variety of innocent reasons credit balances are not uncommon in a health care practice. Continue Reading →

Centers for Medicare and Medicaid Services Announces Transition to Targeted Probe and Educate Strategy

In August, 2017, the Centers for Medicare & Medicaid Services (“CMS”) announced a major change in how it will approach the selection of Medicare claims for improper payment review. Continue Reading →

IMMIGRATION NEWS FLASH: U.S. Supreme Court Lifts Injunction on President Trump’s Travel Ban 2.0, Executive Order 13780

On Monday, June 26, 2017, the U.S. Supreme Court issued a decision on the two infamous “Travel Ban” cases, each of which involve challenges to President Trump’s Executive Order No. 13780, Protecting the Nation From Foreign Terrorists Entry into the United States. Continue Reading →

Effective Communication With Hearing Impaired Persons in Conjunction With the Provision of Medical Services – Silva v. Baptist Health South Florida, Inc.

On May 8, 2017, the Eleventh Circuit Court of Appeals issued its opinion in the case of Silva v. Baptist Health South Florida, Inc. This decision is of importance to the health care industry as it establishes the standard under Title III of the Americans with Disabilities Act, 42 U.S.C. §§ 12181-12189 (“ADA”) and Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 (“Rehab Act”) for the sufficiency of communication with hearing impaired persons in conjunction with the provision of medical services. Continue Reading →

The Individuals with Disabilities Education Act – Endrew F. v. Douglas County School District

On March 22, 2017, the Supreme Court of the United States issued a much-anticipated opinion regarding the appropriate standard to be used to determine whether a free appropriate public education (“FAPE”) has been provided under the Individuals with Disabilities Education Act (20 U.S.C. §1400, et. seq.). This decision is of extreme importance to both school districts and the parents of children with disabilities, as it will significantly impact the provision of special education and related services to children with disabilities. Continue Reading →

Court Determines Title IX Applies to Residency Program at a Private Hospital

The Third Circuit Court of Appeals recently decided a case brought against a private hospital by a female participant in the hospital’s medical residency program that may have important implications for residency programs. The plaintiff alleged that the hospital was liable under Title IX of the Education Amendments Act of 1972 for creating a hostile work environment, retaliation, and quid pro quo harassment, along with several state-law claims. The plaintiff claimed that the director of her radiology residency program sexually harassed her over the course of several months. After she complained about the director’s behavior, she was dismissed from the residency program. Continue Reading →