What Florida Businesses Need to Know About the COVID-19 Response
Please note: This alert will be updated periodically with new developments. This was last updated on June 19, 2020. For your convenience, any new information added to our report is highlighted.
Holland & Knight cares about our clients and the difficulties that they face tracking and processing fast-moving developments in Tallahassee and around the state relating to the coronavirus (COVID-19). This Holland & Knight alert aggregates Florida developments and will be updated on a regular basis. Please note that the situation surrounding COVID-19 is evolving and that the subject matter discussed in these publications may change on a daily basis. If you have specific questions, please contact Nathan Adams.
Reopen Florida Initiative
Florida has moved to Phase 2 reopening with E.O. 20-139 with exceptions for Miami-Dade, Broward and Palm Beach counties. Phase I reopening of Florida began on May 4, 2020, in accordance with the recommendations of the Governor's Task Force to Re-Open Florida pursuant to E.O. 20-112. With E.O. 20-123, the governor brought "all Florida counties into Full Phase I," and expanded retail, restaurant and food, museum and library, and gym and fitness service to 50 percent of capacity. E.O. 20-120 permitted barbershops, cosmetology salons and cosmetology specialty salons that adopt appropriate social distancing and precautionary measures to open. In addition, E.O. 20-120 eliminated the restriction in Section 2(a)(2) of E.O. 20-112 as relates to Palm Beach County. E.O. 20-122 removed the same restriction for Miami-Dade and Broward counties, subject to the counties' own more detailed Phase I reopening guidelines. E.O. 20-131 allowed summer camps, youth recreation camps, youth sports teams and leagues, and youth clubs and programs to operate.
Safer at Home Orders
Safer at home orders requiring "all persons in Florida to limit their movements and personal interactions outside of their home to only those necessary to obtain or provide essential services or conduct essential activities," including E.O. 20-91, as extended by E.O. 20-111 and E.O. 112, are superseded by E.O. 20-139. Instead, "[a]ll persons in Florida are encouraged to follow appropriate social distancing and safety protocols issued by the CDC and OSHA." Senior citizens and individuals with significant underlying medical conditions are strongly encouraged to avoid crowds and take measures to limit the risk of exposure. All persons are encouraged to avoid congregating in groups larger than 50 persons.
All mortgage foreclosures and tenant eviction proceedings due to nonpayment of rent because of COVID-19 by residential tenants are suspended and tolled until 12:01 a.m. on July 1, 2020, pursuant to E.O. 20-94, as amended by E.O. 20-121 and E.O. 20-137. The initial order states that nothing therein should be interpreted as relieving individuals from their obligations to pay mortgage or rent payments.
Waiver of Certain Assessments
Department of Business and Professional Regulation (DBPR) E.O. 2020-06 provides that as of June 1, 2020, Sections 1-9 of DBPR E.O. 2020-04 expired. Sections 1-5 related to the emergency powers of a board of a condominium, cooperative or homeowners' association, and Sections 6-9 related to the tolling of time requirements for the filing of certain financial statements of condominium associations, cooperative associations and timeshare plans. DBPR E.O. 2020-06 also extends the waiver of the assessment of harbor pilots in Section 10 of DBPR E.O. 2020-04 for May, June and July 2020.
Business, Industry and Economic Stabilization
Workers' Compensation Benefits for Eligible COVID-19 Victim
E.O. 20-104 temporarily suspends the biweekly reporting requirement by claimants of the "actively seeking work" requirement.
The Office of Insurance Regulation issued OIR-20-05M to workers' compensation insurance companies. The Informational Memorandum reminds insurers that employers must provide workers' compensation coverage if the employee suffers a compensable injury arising out of work performed in the course and scope of employment. The memorandum states that employees, including, but not limited to first responders and healthcare workers, that contract COVID-19 because of work-related exposure would be eligible for workers' compensation benefits. Workers would still have to prove that the work was a maximum contributing cause of the injury under Section 440.151, Florida Statutes.
Licensure and Examination Eligibility
DBPR E.O. 2020-08 suspends and tolls through Dec. 31, 2020, all deadlines for licensure eligibility applicable to professions regulated pursuant to Chapter 455, Florida Statutes, and the related professional practices. Pursuant to DBPR E.O. 2020-03, DBPR had suspended the licensure and examination eligibility until May 31, 2020.
Health and Medical
AHCA Requires Mandatory Testing at Nursing Homes and Assisted Living Facilities
On May 11, 2020, the Florida Agency for Health Care Administration (AHCA) issued Emergency Rules 59AER20-2 and 59AER20-3 requiring nursing homes and assisted living facilities to grant access to the Florida Department of Health or their authorized representative for the purpose of conducting infection prevention and control activities, including mandatory COVID-19 testing of residents and staff. AHCA may take administrative action against a facility for failing to comply with these rules, including the imposition of fines and the suspension or revocation of the facility's license. E.O. 20-139 provides that "[a]ll persons who work in long-term care facilities should be tested for COVID-19 on a routine basis."
AHCA Increases Testing at Nursing Homes and Assisted Living Facilities
On June 16, 2020, the Florida AHCA issued Emergency Rules 59AER20-04 and 59AER20-05 increasing testing of staff at assisted living facilities and nursing homes. Beginning on July 7, 2020, all staff at assisted living facilities and nursing homes must have been tested for COVID-19 or they will not be permitted to have access to such facilities. In addition, staff must be tested every two weeks thereafter with testing resources provided by the state. Staff who have already been infected and recovered from COVID-19 are exempt from being tested provided they can provide medical documentation to the facility. AHCA may take administrative action against a facility for failing to comply with these rules, including the imposition of fines and the suspension or revocation of the facility's license.
Emergency Rule Requires Immediate Reporting to State of COVID-19 Test Results
On April 13, 2020, the Florida Department of Health issued Emergency Rule No. 64DER20-26, which adds the coronavirus (COVID-19) to the list of diseases or conditions that a healthcare practitioner, hospital, laboratory or other individual is required to report. The Emergency Rule requires practitioners and laboratories to report COVID-19 testing results (both positive and negative) immediately and without delay to the Department and local health department.
Using Anesthesia Machines as Ventilators
On April 3, 2020, Florida AHCA announced that it is asking hospitals to "strongly consider anesthesia machines for conversions to ventilators." AHCA's announcement noted that use of such machines in this manner has been approved by the FDA temporarily.
Florida's Agency for Health Care Administration requires that all entities licensed to provide inpatient or residential services use an approved database for reporting emergency status. You can find more information about logging in to the Emergency Status System (ESS) here. Per the guidance available here, all nursing homes and assisted living facilities must make sure their information is up to date. The ESS system is also being used to monitor the state's inventory of ventilators.
Emergency Order Suspends Visitation to Health Care Facilities
Pursuant to Gov. Ron DeSantis' E.O. 20-52, as extended, the Florida Department of Emergency Management issued DEM Order No. 20-006, which suspended visitations to group homes, developmental disabilities centers, nursing homes, assisted living facilities, long-term care hospitals, homes for special services, transitional living facilities, intermediate care facilities for the developmentally disabled, adult mental health and treatment facilities, adult forensic facilities and adult family-care homes. The order applies to all visitors, unless an exception applies. The order does not apply to the facility's healthcare workers unless the worker is prohibited from entering the facility under the order's remaining criteria.
Non-Emergency Surgeries and Procedures May Resume
Elective procedures prohibited by E.O. 20-72 may resume. E.O. 20-72 prohibited "any medically unnecessary, non-urgent, or non-emergency procedure or surgery which, if delayed, does not place a patient's immediate health, safety, or well-being at risk, or will if delayed, not contribute to the worsening of a serious or life-threatening medical condition." E.O. 20-112 permits a hospital ambulatory surgical center, office surgery center, dental office, orthodontic office, endodontic office or other healthcare practitioners' office to perform these procedures under certain circumstances.
As the current emergency evolves, the ability to provide healthcare when and where it is needed most will be a critical component of maintaining public health. Telehealth and telemedicine will play a significant role. On March 6, 2020, Congress passed the Coronavirus Preparedness and Response Supplemental Appropriations Act, H.R. 6074, Public Law 116-123, that relaxed certain Medicare requirements for delivering healthcare through telemedicine. More information on the federal changes (as of March 20) is available in this Holland & Knight Healthcare Blog post. A Florida Department of Health Emergency Order 20-003 provides that, for purposes of responding to COVID-19, healthcare professionals not licensed in Florida may provide healthcare services to a Florida patient, for a period of time not to exceed 30 days unless extended by an order of the State Surgeon General. Through Department of Health Emergency Order 20-005, the provisions of 20-003 are extended until the expiration of Executive Order No. 20-52, including any extensions thereof. Additionally, the registration requirement for healthcare professionals practicing telehealth in Florida has been waived. It was initially waived on a temporary basis via Florida Department of Health Emergency Order 20-002, executed on March 16, 2020. This waiver has been extended three times, and was most recently extended on May 30, 2020, via Department of Health Order No. 20-009. The waiver is currently extended to June 30, 2020. OCR has indicated that it will exercise enforcement discretion regarding certain HIPAA requirements with respect to use of telehealth during the crisis. OCR has issued frequently asked questions regarding telehealth.
Travelers Subject to Quarantine
E.O. 20-80 and 20-82, as extended by E.O. 20-112 and E.O. 20-139, require individuals originating from the New York Tri-State Area or who have originated from there within the last 14 days to isolate or quarantine for a period of 14 days from entry into the state. E.O. 20-86, as extended in part by E.O. 20-112, requires individuals entering or who have entered Florida from an area with substantial community spread including the state of Louisiana, inclusive of those entering by roadway, to isolate or quarantine for 14 days from the time of entry into the state or the duration of their stay, whichever is shorter. Penalties are criminal. In addition, E.O. 20-82 and 20-86 require such individuals to inform any individual in Florida with whom they have had direct physical contact in the past 21 days that they traveled from an area with substantial community spread. Persons employed by the airlines and those performing military, emergency or health response are exempt from these orders, along with persons involved in commercial activity and students traveling for the purpose of academic work, internships, sports training and any other activity or program approved by the educational institution.
PPE Expiration Dates Suspended
DBPR E.O. 2020-02 suspends the provisions of section 499.006(9), Florida Statutes, as they relate to the expiration date of personal protective equipment (PPE) that is worn to minimize exposure to hazards that cause serious workplace injuries or illnesses, including filtering facepiece respirators such as N-95 respirators and surgical masks.
Reemploying Public Servants for COVID-19 Response Eased
E.O. 20-88 tolls certain public service retirement limitations for continued employment or reemployment of certain public servants who can assist with the COVID-19 emergency response.
Restaurants May Serve at 50 Percent Capacity
E.O. 20-112, as amended by E.O. 20-123 and 20-139, provides that restaurants and food establishments (excluding nightclubs) may serve food and beverages indoors at 50 percent of their seating capacity, excluding employees, with appropriate partitioning. In addition, outdoor seating is permissible with appropriate social distancing. Bar counters may be open with seated service.
Food Establishment Workers Subject to Screening and Limited to To-Go
E.O. 20-68 required restaurants to begin screening and prohibiting any employee infected with or exposed to COVID-19 from entering restaurants. E.O. 20-71 suspends on-premises food consumption for customers of Chapter 500- and 509-licensed restaurants and food establishments while allowing them to operate for the purpose of providing delivery or take-out services.
Vacation Rentals Authorized
E.O. 20-123 permitted counties to seek approval to operate vacation rentals with a written request from the county administrator and a safety plan submitted to the DBPR Secretary.
Retail and Services
In-store retail sales establishments, gyms and fitness centers may operate at 50 percent of their building occupancy under E.O. 20-112, as amended by E.O. 20-123 and E.O. 20-139. Retail sales establishments must abide by the safety guidelines issued by the CDC and OSHA. Gyms and fitness centers must adopt appropriate safety measures such as social distancing for classes and sanitation protocols. Per E.O. 20-139, personal services including tattooing, body piercing, acupuncture, tanning and massage may operate with appropriate safety guidelines.
Under E.O. 20-123, amusement parks were authorized to submit a plan to reopen. Professional sports were also welcomed in the state including venues for training, competitions, events and games. Per E.O. 20-139, entertainment businesses such as movie theaters, concert houses, auditoriums, playhouses, bowling alleys, and arcades were allowed to begin operating at 50 percent of building capacity, with appropriate social distancing. Pari-mutuel facilities could also apply to operate.
Administrative and Judicial Relief
Florida Supreme Court Chief Justice Charles Canady has created the "Workgroup on the Continuity of Court Operations and Proceedings During and After COVID-19," which is tasked with developing findings and recommendations on the progressive return to standard court operations during and after the pandemic. The workgroup will meet through at least June 30, 2020, although the Chief Justice has directed the workgroup to present its findings and recommendations to the court as they are developed instead of preparing a final report.
Trial and Appellate Courts in Florida
The Florida Supreme Court has suspended all statewide grand jury proceedings through July 26, 2020, but has otherwise directed that the chief judges of each circuit may determine when to resume in-person jury trials based on local conditions. A summary of the latest administrative orders issued by the Florida Supreme Court, including a new "best practices" memorandum regarding state court operations, may be found here.
With respect to the federal courts in Florida, the U.S. District Court for the Southern District of Florida has continued all jury trials until Aug. 31, 2020, while individual judges have discretion to proceed with hearings, conferences and bench trials. The Northern District has continued all jury trials scheduled to occur between May 1 and June 30, 2020, and has authorized public access to the courthouses subject to certain guidelines. The Middle District has issued an administrative order closing or significantly limiting public access to the courthouses, and individual divisions within the district have issued their own orders regarding the continuation of trials. All three federal courts – the Northern, Middle and Southern districts – have issued administrative orders under the federal Coronavirus Aid, Relief, and Economic Security Act (CARES Act) concerning the courts' authority to conduct some criminal proceedings by video or audio conference.
The Division of Administrative Hearings (DOAH) issued an order clarifying that the Tallahassee office of DOAH remains open and directing administrative law judges to review their dockets and maximize the use of telephonic or video conferencing; the provisions of that order have been extended through May 31, 2020. Most of the Offices of the Judges of Compensation Claims – the administrative bodies charged with hearing workers' compensation claims – remain open, although all mediations must be conducted telephonically through May 31, 2020.
Certain Building and Environmental Permits Extended
Department of Business and Professional Regulation (DBPR) has opined that E.O. 20-52, as extended by E.O. 20-114, qualifies as a "natural emergency," which allows for the tolling and extension of certain permits pursuant to Florida Law. We note, however, that a recent challenge to a separate executive order argues that the novel coronavirus disease does not constitute a "natural emergency." The outcome of this case may impact whether the governor's declaration of a state of emergency for COVID-19 provides authorization for the tolling and extension of time of valid permits and development orders. (See Holland & Knight's alert, "Florida Extends COVID-19 State of Emergency, Providing More Time for Developers, Permit Holders," May 19, 2020.)
Section 252.363, Florida Statutes, provides for the tolling of valid permits and other authorizations during the declaration of a state of emergency, plus an extension for an additional six months. The tolling and extension provisions apply to the expiration of 1) development orders issued by a local government, 2) building permits, 3) Florida Department of Environmental Protection or water management district permits issued pursuant to part IV of Chapter 373, Florida Statutes, and 4) buildout dates for developments of regional impact (DRI), including any extension of a buildout date that was previously granted pursuant to Section 380.06(19)(c), Florida Statutes.
In order to take advantage of the tolling and extension option, permit holders must notify the issuing authority of their intent to do so in writing within 90 days of the termination of the emergency declaration. The notice must be in writing and identify the specific permit or other authorization qualifying for extension.
E.O. 20-149 suspends F.S. 101.68(2)(a) to the extent it prohibits the County Canvassing Boards from beginning canvassing of Vote-By-Mail ballots earlier than 7 a.m. on the 22nd day before the election; suspends Rule 60L-29.002(6), Fla. Admin. Code for the limited purpose of authorizing Administrative Leave for any state employee to serve as a poll worker in the county in which they are an elector, subject to approval by their supervisor; requires each Supervisor of Elections to ensure proper social distancing and cleaning procedures are implemented for Early Voting and Election Day; encourages each Superintendent of Schools to close all K-12 schools commonly used as precinct polling locations for use on Primary Election Day and General Election Day as precinct polling locations; and requires timely notice of any changes in voting locations or procedures by the Supervisor of Elections. E.O. 20-124 reschedules municipal elections delayed by E.O. 20-97 for the cities of San Antonio and Dade City to June 30, 2020.
E.O. 20-95 exempts from the Florida Documentary Stamp Tax all notes and other written promissory obligations issued pursuant to Title I of the CARES Act.
Florida Tax Filing Deadlines Extended
Other tax extensions apply for the tourist development tax, new tire fees, rental care surcharge, prepaid wireless, lead acid battery fees and dry-cleaning gross receipts. Taxpayers who fall within the definition of adversely affected but who are able to file and pay on time are encouraged to do so. The Department's special email address for COVID-19 issues is: COVID19TAXHELP@FloridaRevenue.com. The Department's general call center number is 850-488-6800.
Local Emergency Orders
DISCLAIMER: Please note that the situation surrounding COVID-19 is evolving and that the subject matter discussed in these publications may change on a daily basis. Please contact the author or your responsible Holland & Knight lawyer for timely advice.
Information contained in this alert is for the general education and knowledge of our readers. It is not designed to be, and should not be used as, the sole source of information when analyzing and resolving a legal problem. Moreover, the laws of each jurisdiction are different and are constantly changing. If you have specific questions regarding a particular fact situation, we urge you to consult competent legal counsel.