ALERT: DEPARTMENT OF LABOR EXPLAINS MORE REGARDING FAMILIES FIRST CORONAVIRUS RESPONSE ACT
The United States Department of Labor provided additional guidance last week regarding the implementation of the Families First Coronavirus Response Act (“FFCRA”), including (1) establishing an April 1, 2020 effective date for the statute, (2) providing advisory posters to apprise employees of their rights under the FFCRA, and (3) providing for a 30-day nonenforcement period with respect to employers who make a good faith effort to comply with the FFCRA’s requirements.
The FFCRA requires employers with fewer than 500 employees to provide up to 10 days of paid sick leave relating to COVID-19, expands coverage under the Family and Medical Leave Act to allow for the partial payment of wages to parents who are unable to work in order to care for minor children whose school or day care provider closed due to COVID-19, and establishes a framework of tax credits to fund these protections. Our analysis of this statute describes these provisions in greater detail.
Due to the volume of questions regarding FFCRA’s impact on employers and employees, the Department of Labor announced additional guidance for workers and employers on March 26, 2020. The Department of Labor established an April 1, 2020 effective date for the statute. It applies to leave taken between April 1, 2020 and December 31, 2020.
The March 26, 2020 guidance from the Department of Labor includes two new posters – one for federal workers and one for all other workers – that will fulfill an employer’s obligation to notify its employees about their rights under the FFCRA. The poster for private sector workers, and for nonfederal governmental workers is available at this link.
Key takeaways include:
- Each covered employer (certain public sector employers and private sector employers with fewer than 500 employees) must post a notice of the FFCRA’s requirements in a conspicuous place on its premises. This requirement can be satisfied by emailing or direct mailing this notice to employees, or posting this notice on an employee informational website. Because many employees have limited ability to physically access their workplace, we recommend emailing this notice where practicable.
- Employers are not required to post this notice in multiple languages, but the Department of Labor is working to translate the notices into other languages.
- FFCRA notice requirements only apply to current employees. Employers need not provide the notice to recently laid-off individuals or prospective employees.
- Even if the state in which an employer operates offers greater protections than the FFCRA, the employers must still post the notice.
The Department of Labor also issued a Field Assistance Bulletin, calling for a temporary period of non-enforcement of FFCRA violations against any public or private sector employers for a 30-day period from March 18, 2020 through April 17, 2020, provided that the employer has made reasonable, good faith efforts to comply with the statute. In order for the Department of Labor to find that an employer acted “reasonably” and “in good faith” during this nonenforcement period, the following factors must be present:
- the employer must remedy any violations as soon as practicable;
- the violations must not be “willful,” meaning the employer neither knew that its conduct was prohibited, nor showed reckless disregard as to whether its conduct was prohibited; and
- the Department of Labor must receive a written commitment from the employer to comply with the Act in the future.
This limited stay of enforcement will be lifted after April 17, 2020, and the Department of Labor will fully enforce violations of the Act thereafter.
The Department of Labor has advised that additional regulatory guidance regarding the FFCRA is forthcoming. Most significantly, the Department of Labor will provide guidance to small businesses with fewer than 50 employees as to the circumstances when they may seek exemptions from FFCRA’s sick leave and family leave provisions because such leave would jeopardize the viability of the business.