All posts by stu

Americans with Disabilities Act, EEOC, Employee Illness, Employee Injury, Employee Policies, Return to Work

Can an Employer Require a “Full Release” to Return from Medical Leave?

When an employee takes a medical leave of absence—whether for surgery, illness, or another health condition—employers often ask for a doctor’s note before the employee returns. But what about requiring a “full release” or “100% healed” certification? Is that legal? The short answer: not usually. A national Property management company recently settled a federal EEOC lawsuit charging it retaliated against an employee with a disability and screened out disabled workers.  Prohibiting employees from returning from a medical leave of absence without a full-duty release note from their physician and a physician-signed copy of their job description was not legal because it prohibited disabled employees from returning to work if they needed an accommodation.

Understanding the Law

Under federal law—primarily the Americans with Disabilities Act (ADA) and the Family and Medical Leave Act (FMLA)—employers must be careful not to impose overly broad medical restrictions when bringing employees back from leave.

The ADA protects qualified employees with disabilities from discrimination and requires employers to provide reasonable accommodations that allow employees to perform their essential job duties. A blanket policy requiring all employees to be “fully released” to return to work may violate the ADA because it ignores an employee’s right to return with accommodations.

The FMLA allows eligible employees to take up to 12 weeks of unpaid leave for serious health conditions. At the end of FMLA leave, employers may require a fitness-for-duty certification related to the employee’s ability to perform the job’s essential functions—but the certification cannot demand that the employee be 100% recovered if they can still do the job with or without accommodation.

What Employers Can Require

Employers can legally:

  • Ask for a fitness-for-duty certification that specifically addresses whether the employee can perform the essential job functions listed in their job description.
  • Require a release that confirms the employee’s ability to safely perform work duties, with or without accommodations.
  • Engage in an interactive process with the employee and their healthcare provider to identify any needed accommodations.

What Employers Cannot Require

Employers should not:

  • Enforce a blanket “no restrictions” or “100% healed” policy.
  • Refuse to reinstate an employee who can perform essential duties with reasonable accommodations.
  • Ask for unrelated medical information or condition details beyond what is necessary to determine fitness for duty.

Best Practices

To stay compliant and support a smooth return-to-work process:

  1. Update job descriptions to clearly identify essential job functions.
  2. Develop a consistent fitness-for-duty process that focuses on abilities, not medical labels.
  3. Train supervisors and HR staff on ADA and FMLA return-to-work rules.
  4. Engage in the interactive process early to explore accommodations such as modified duties, schedules, or temporary restrictions.
  5. Document any communications with the employee and healthcare provider.

Bottom Line

Requiring a “full release” to return from medical leave may seem like a way to protect safety and productivity—but it can easily cross into a violation of the ADA or FMLA. The safest approach is to focus on whether the employee can perform the essential job functions, with or without reasonable accommodation, rather than insisting on complete recovery.

By balancing legal compliance with employee support, employers can reduce risk, improve retention, and create an effective return-to-work process.

Compliance, Department of Labor, Fair Labor Standards Act, HR Compliance, Minimum Wage, Wage and Hour

US Department of Labor Ends Practice of Seeking Liquidated Damages during Investigations

In June 2025, the U.S. Department of Labor’s Wage and Hour Division (WHD) announced a major policy change when it issued a field assistance bulletin clarifying that it may not seek or collect the payment of liquidated damages in any administrative matter under the Fair Labor Standards Act. Section 216(c) of the FLSA authorizes the Wage and Hour Division to “supervise the payment of the unpaid minimum wages or the unpaid overtime compensation owing to any employee.” The statute does not authorize the Department to compromise claims for or recover liquidated damages except where an enforcement action is brought in litigation. Congress made clear that such damages are reserved for judicial proceedings and responsibility falls to the courts of law – not the Department of Labor. However, in 2010, under the Obama administration and again under the Biden administration, the WHD was directed to seek liquidated damages in the administrative investigation stage—prior to referral for litigation. This policy has now been reversed. Read the FAB 2025-3.

What are liquidated damages? Under the FLSA, liquidated damages are authorized for employees who bring private lawsuits to recover unpaid minimum wages or overtime compensation. Liquidated damages are an additional equal amount of wages to the alleged unpaid wages. These damages mean the employer would pay double damages to an employee who is successful in bringing an unpaid wage lawsuit.

Liquidated damages are reserved only for judicial proceedings. The FLSA provides that a court may decline to award liquidated damages if it determines that the employer acted in good faith and had reasonable grounds for believing its conduct was not in violation of the Act. This statutory language expressly vests the authority to evaluate an employer’s good faith defense—and to determine whether liquidated damages are appropriate—with courts, not WHD.

What does this mean? Going forward, it should be easier and quicker to resolve wage disputes with employees, which is good for all parties involved.

Employee Injury, HR Costs, Injury Statistics, Insurance, Workers Compensation

Florida Work Comp Rates Heading Down in 2026 – 6.9% Cut Recommended

The National Council on Compensation Insurance (NCCI) is recommending that the Florida Office of Insurance Regulation reduce workers’ compensation rates by an average of 6.9%, starting Jan. 1, 2026. NCCI is the nation’s most comprehensive source for workers’ compensation data, insights and solutions. It is a licensed rating organization authorized to make recommended rate filings on behalf of workers’ compensation insurance companies in Florida.

Reducing rates is being recommended because of improved loss experiences at Florida companies between 2022 and 2024. In addition, the claim frequency in 2024 decreased faster than the average long-term rate of decline. Inflation drove the average medical and indemnity claim severity up in 2024, but the main driver for the increased cost was increased utilization of medical services by injured workers. Indemnity claims also increased due to wage increases.

In November, the Florida Insurance Commissioner will issue a Final Order and either grant approval of the NCCI Recommendation or take another action. Last year, the Commissioner granted a 1.0% decrease in statewide overall workers’ compensation insurance rates in 2025.

If your business needs assistance understanding the specific classification codes affecting your industry, or how claims impact your experience modification rate (EMR), give us a call. Consultstu works with many companies to bring down the cost of workers’ compensation, handle questions related to specific claims and implement company-wide strategies that keep WC costs as low as possible.

Compensation, Employment Poster, HR Compliance, Minimum Wage, Posters, Wage and Hour

Florida Minimum Wage Increasing to $14/hour on Sept 30th

On September 30, 2025, the Florida minimum wage will increase to $14 per hour. The tipped minimum wage in Florida will increase to $10.98 because Florida employers are permitted to take a tip credit of up to $3.02 per hour for tipped employees. An employer that claims a tip credit must ensure that the employee receives enough tips from customers, and direct (or cash) wages per workweek to equal at least the minimum wage and overtime compensation required under the FLSA.

Why is it increasing? On November 3, 2020, Florida voters approved a constitutional amendment to gradually increase the state’s minimum wage each year until reaching $15.00 per hour in September 2026.

Poster Requirement. Section 448.109, Florida Statutes, requires employers who must pay their employees the Florida minimum wage to post a minimum wage notice in a conspicuous and accessible place in each establishment where these employees work. Florida’s minimum wage notice is available for downloading in English, Spanish, and Creole from the Florida Department of Commerce’s website at https://www.floridajobs.org/business-growth-and-partnerships/for-employers/display-posters-andrequired-notices. The latest 2025 minimum wage poster should be available in the next week.

Want to know what the minimum wage is for a different state? Check out the Wage and Hour – State Minimum Wage Laws map and table.

300 Log, Employee Injury, Injury Statistics, OSHA, Record Keeping, Risk Management, Safety

Is Red Light Therapy Considered First Aid or Medical Treatment by OSHA?

A recent Opinion Letter from the Occupational Safety and Health Administration (OSHA) addressed whether the recordkeeping regulation contained in 29 CFR Part 1904 – Recording and Reporting Occupational Injuries and Illnesses, requires that LED (light emitting diode) red light therapy and red light therapy wraps constitute first aid for purposes of OSHA recordkeeping, or if it was first aid treatment under section 1904.7(b)(5)(ii). This is important distinction for employers because first aid cases do not get added to the annual OSHA 300 log, and medical treatment cases are recorded. OSHA concluded that red light therapy is medical treatment, not first aid.

Section 1904.7(b)(5) of OSHA’s recordkeeping regulation requires employers to record work-related injuries and illnesses that result in medical treatment beyond first aid.  Section 1904.7(b)(5)(iii) goes on to state that the list of first aid treatments in section 1904.7(b)(5)(ii) is a comprehensive list of first aid treatments. Any treatment not included on the list is not considered first aid for OSHA recordkeeping purposes. Hot and cold therapy is considered first aid treatment for purposes of OSHA recordkeeping. OSHA had to determine if red light therapy was like heat therapy, or something else. According to available literature, light therapy is distinct from hot therapy. Light therapy accomplishes health benefits via photons of light interacting with cellular macromolecules. It is the light itself that penetrates the skin and alters cellular behavior, not the heat from the light. Therefore, OSHA concludes that the use of LED red light therapy wraps is a medical treatment and not hot therapy or other first aid treatment as defined in section 1904.7(b)(5)(ii).

At this time, OSHA does not plan to initiate rulemaking to add LED red light therapy to the first aid list (which would need to be done to consider it first aid). OSHA issued this Opinion Letter on July 28, 2025, in response to a request from Balance Biomechanics, Wellness and Therapy company based on Colorado.

How to Request an Opinion Letter from OSHA. A letter of interpretation (LOI) provides supplementary guidance that clarifies how to apply the OSH Act, or a particular standard, policy. Before requesting a letter of interpretation please consult the following agency guidance and material which may address your question. Check here to submit a request.

Commercial Motor Vehicle Driver, DOT, Drivers, FMCSA, HR Compliance, Immigration

What is EPL (English Language Proficiency) for DOT drivers and CDLs for Non-Domiciled Drivers?

The recent tragedy on the Florida Turnpike that killed three South Floridians involving an out of state trucker driving for White Hawk Carriers (based in CA) have raised the profile of a few lesser known DOT regulatory subjects: (1) English Language Proficiency (ELP) and (2) the state issuance of CDL licenses to non-domiciled drivers (those not living in the state of issuance). The truck driver who caused the fatal accident had been issued a limited-term/non-domiciled CDL by Washington State and California DMV, according to the DOT. After the accident, the truck driver provided correct responses to just 2 of 12 verbal questions and only accurately identified 1 of 4 highway traffic signs.

What is ELP? FMCSA regulations provide that a driver unable to sufficiently read or speak English or understand highway traffic signs and signals is not qualified to operate a commercial motor vehicle. One of the general qualifications for motor carrier drivers (Title 49, section 391.11(b)) states that drivers “can read and speak the English language sufficiently to converse with the general public, to understand highway traffic signs and signals in the English language, to respond to official inquiries, and to make entries on reports and records.”

Enforcement of ELP: Under the Obama administration (2016), DOT directed inspectors not to place CMV drivers out-of-service for ELP violations. Earlier this year, the Trump administration issued new guidance, commercial motor vehicle (CMV) drivers who fail to comply with Federal Motor Carrier Safety Administration’s (FMCSA) longstanding English-language proficiency (ELP) requirements will be placed out-of-service.  Read more.

Non-Domiciled CDLs: According to DOT, a foreign driver with an employment authorization document may obtain a CDL to operate a CMV in the United States. A foreign driver holding an employment authorization document or an unexpired foreign passport accompanied by an approved Customs and Border Protection (CBP) I-94 Arrival/Departure Record may obtain a non-domiciled CDL. Canadian and Mexican drivers, holding CDLs from their home country, can operate using the CDLs from their country. Foreign drivers can not obtain a resident CDL since they are not domiciled in a U.S. state (as defined in the regulations). An operator is eligible to obtain a Non-domiciled CLP or CDL from any State that elects to issue a Non-domiciled CLP or CDL and that complies with the testing and licensing standards. The FMCSA has launched a sweeping investigation into the use or misuse of non-domiciled CDLs. According to a Transportation news website, California and Washington are among 19 states that issue driver’s licenses to undocumented immigrants. 

Accommodation, Employee Policies, HR Compliance, Reasonable Accomodation, Religion, Social Media

Can an Employee Be Fired for Posting Bible Verses on Personal Social Media?

According to a recent lawsuit filed by the Equal Employment Opportunity Commission (EEOC), the answer is “No”. In the July EEOC lawsuit, Crystal Ridge Ski Area, LLC, doing business as “The Rock Snowpark”, a winter sports park and summer events venue near Milwaukee, Wisconsin, violated federal law when it terminated a lift operations manager because of his religion.

According to the lawsuit, the Rock Snowpark fired a Christian employee, because of his religious beliefs, in violation of federal law. The EEOC alleges that the employee frequently posted Bible verses and faith-based messages on his personal social media account. Although his posts made no mention of the workplace or coworkers, his supervisor told him to refrain from posting them. After confirming with the supervisor that he could continue sharing scripture, the employee was fired three days later for posting another Bible verse. The Acting Chair of the EEOC stated that employees have the right to earn a living free from discrimination based on their religious beliefs.

The law requires an employer to reasonably accommodate an employee’s religious beliefs or practices, unless doing so would cause a burden that is substantial in the overall context of the employer’s business taking into account all relevant factors, including the particular accommodation at issue and its practical impact in light of the nature, size, and operating cost of the employer. Read the EEOC Guidance to Employers on religious accommodation in the workplace.

This means an employer may be required to make reasonable adjustments to the work environment that will allow an employee to practice his or her religion. Examples of some common religious accommodations include flexible scheduling, voluntary shift substitutions or swaps, job reassignments, and modifications to workplace policies or practices.

Consultstu Team, Employee Handbook, HR Compliance, HR software, Human Resources

New Florida Business? Here Are the HR Documents You Need on Day One

Starting a new business in Florida is an exciting journey, but it comes with important responsibilities – especially when it comes to human resources (HR). Whether you’re hiring your first employee or planning to grow quickly, having the right HR documents in place sets the foundation for legal compliance, professionalism, and an energized workplace. These HR documents help protect your business, communicate expectations clearly, and support smooth operations from day one.

1. Offer Letters and Job Descriptions: Every hire should begin with a clear job description outlining the role’s responsibilities, skills required, and reporting structure. You will use the job description to advertise the opening, Once you’ve selected a candidate, an offer letter formally outlines the terms of employment—such as pay rate, start date, and at-will status. These documents are key to avoiding confusion later and ensuring that all parties are on the same page.

2. New Hire Forms and Acknowledgements: Florida employers are required to complete federal and state forms like the IRS W-4, I-9 (Employment Eligibility Verification), and Florida New Hire Reporting form (or online). Additionally, businesses should have employees sign an employee handbook acknowledgment, a direct deposit authorization form, emergency contacts and consent forms for background checks or drug screening, if applicable.

3. Policies and Compliance Documents: A well-drafted Employee Handbook helps establish your company’s rules, code of conduct, anti-discrimination policies, and workplace expectations. Depending on your business, you may also need a confidentiality agreement, non-compete or non-solicitation clauses, and workplace safety policies that align with all applicable OSHA requirements.

4. Timekeeping and Payroll Records: Whether you use a paper system or payroll software, you must maintain accurate records of hours worked, wages paid, and paid time off balances for your new employees. Under both federal and Florida law, employers are required to keep certain payroll and employment records for a minimum period of time—usually three to four years. The online payroll systems can also have some cool tools for collecting HR forms via electronic signatures.

Starting with the right HR documents doesn’t just keep your business compliant—it also builds employee trust and supports long-term success. Many small businesses choose to partner with an HR consultant or legal advisor to customize these documents to fit their unique industry and size. Investing in HR infrastructure early will pay off in fewer headaches and more confident management down the road. Consultstu is here to help you get your small business launched with good structure and a solid foundation. We offer affordable, customized HR assistance to all types of businesses – medical office, construction company, professional services, hospitality, retail and more.

Compliance, Employee Policies, Florida rules, Human Resources, Non-complete Agreements, Salaried employees

Florida CHOICE Act Makes Non-Competes Longer and Enforcement Easier

The Florida legislature recently passed the “Contracts Honoring Opportunity, Investment, Confidentiality, and Economic Growth (CHOICE) Act.” For high earning, salaried employees, the CHOICE Act makes it much easier for their employers to enforce non-compete agreements in Florida and allows for longer non-compete time-periods. It is designed to foster economic growth, protect business interests, and enhance Florida’s investment climate by strengthening protections for covered employers. Governor DeSantis allowed the Act to become law without his signature, and the new law took effect on July 1, 2025. Read more.

Here is a summary of what the CHOICE Act includes:

  • Covered Employees: It covers Florida based employees (those primarily employed in Florida) and employees of Florida based companies with Agreements that are governed by Florida law (choice of law provision). Covered employees are high earning, salaried employees. Twice the annual mean wage of the county in this state in which the covered employer has its principal place of business. The definition includes, and excludes, certain employee benefits and extra compensation.
  • Exclusion: It excludes health care practitioners (they remain covered by existing non-compete law).
  • Requirements: The agreement must advise the employee to seek legal counsel. The employee must acknowledge in writing that the employee will receive confidential information or customer relationships during their employment. Lastly, the employer must provide at least 7 days’ notice of the non-compete before an offer of employment expires or 7 days’ notice before the date that an offer to enter into a “covered non-compete agreement” expires (7 days to review it and seek counsel).
  • Enforcement: Courts are required to preliminarily enjoin a covered employee from providing competing services to any business, entity, or individual during the non-compete period. Employees will have a higher burden of proof in order to dissolve or modify the injunction. The CHOICE Act will also enjoin the new business or individual employing the employee subject to a non-compete agreement. Businesses that are not parties to the non-compete agreement can still be subject to lawsuits and injunctions.
  • Length of time: The CHOICE Act permits non-compete agreements up to four years in length (longer than the 2 years length in the existing Florida statute).
  • Next Steps: CHOICE Act (to use these new provisions) employers will need to review and update their existing non-compete agreements to comply with the CHOICE Act requirements. Otherwise, the existing non-compete statute (542.335) remains available for employers seeking to enforce restrictive covenants.

The CHOICE Act is now in effect. Employers will want to review their current non-compete agreement and consider making the changes required by the Act, if they want to take advantage of the expanded restrictions and easier enforcement provisions. Read more.

Audits, Compliance, Consultstu Team, E-Verify, HR Compliance, I9 Form, Immigration

Walmart Worker Verification (WV) Program for Contractors

Contractors working with Walmart may be required to comply with Walmart’s strict Worker Verification (WV) Program as part of their Compliance and Performance Standards. This program is designed to ensure that every worker on a Walmart site is authorized to work in the U.S. and has been properly documented before entering the project site. Non-compliance can delay the project or jeopardize your contract. If your company needs an independent third party Verifier or Auditor to assist with meeting your compliance obligations under your Walmart Contract documents, contact the team at Consultstu LLC.

What is Walmart’s Worker Verification Program?

Walmart’s Worker Verification (WV) Program applies to general contractors and their subcontractors, regardless of tier. Each worker at a Walmart site must be verified, badged and matched to their photo ID upon check-in. Failure to follow these steps may result in project disruption and removal from the site. Under Walmart’s WV program each company must certify the following:

  • Certify that the contractor follows all immigration and worker eligibility laws.
  • Maintain I-9 records for each worker (and copies of employment verification documents).
  • Provide a WV Certification Form listing all workers by name and employer (using designated forms).
  • Issue badges only to verified workers listed on the WV Form.
  • Update the WV Form when new workers are added to the site.
  • Report any Worker Verification Incidents (such as false documents) within one hour to Walmart.
  • Cooperate with a WV Auditor for any compliance reviews or audits.

Worker Verification I9 Audits and Reviews

Walmart’s Worker Verification Certification audits conducted by a third-party verifier need to be able to attest and affirm the following:

  • Review I-9 forms for compliance.
  • Ensure documents are free of substantive or uncorrected technical deficiencies (other than timeliness). Copies of employment eligibility documents must be maintained by the Contractor.
  • Verify the contractor’s list of workers on-site matches those certified and listed on the WV Form (exact format must be followed).
  • Contractor must not have been the subject of ICE enforcement action within the previous 2 years.
  • Confirm Contractor intends to or has procedures in place to track and report worker eligibility and incidents.
  • WV Auditor has been given access to the documents and personnel as needed to complete the audit.

The audit certification would be signed by a Qualified Employee Verifier and may be relied upon by Walmart to assess compliance by the Contractor. If your company needs the services of a knowledgeable and reliable auditor of your I9s forms and related documentation, contact Consultstu LLC at (727) 350-0370. We can assist your company with performing an I9 audit of existing employees going to work on a Walmart project, and completing the required forms and certifications needed to maintain compliance with Walmart’s Global Ethics and Compliance policy.

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