U.S. Department of Labor Provides Additional Guidance Regarding Paid Sick Leave and Expanded Family and Medical Leave under the FFCRA

Categories : Coronavirus

Types : Alerts

Today, the U.S. Department of Labor’s Wage and Hour Division (“WHD”) released new guidance on the notice requirements under the Families First Coronavirus Response Act (“FFCRA”).  The guidance includes two new posters, one for federal workers and one for all other covered employers.  The FFCRA will take effect on April 1, 2020.

Under the FFCRA, each covered employer must post a notice of the FFCRA requirements in a conspicuous place on its premises.   Recognizing that most employees are currently teleworking, the WHD provided that an employer may satisfy the notice requirement by either “emailing or direct mailing this notice to employees or posting this notice on an employee information internal or external website.”

All employers covered by the paid sick leave and expanded family and medical leave provisions of the FFCRA (i.e. employers with fewer than 500 employees) are required to post or e-mail this notice.  Employers do not need to share this notice with recently laid off individuals or job applicants, but they must share the notice with new hires.

Importantly, employers must comply with both federal and state law.  Therefore, they are required to post this notice regardless of whether their state requires greater protections.

To allow for covered employers to come into compliance with the FFCRA, WHD will observe a temporary period of non-enforcement of the FFCRA for the period of March 18 through April 17, 2020.  During this non-enforcement period, the Department of Labor will not bring enforcement actions against any covered employer so long as the employer has made “reasonable, good faith efforts to comply with the Act.”

For purposes of this non-enforcement position, an employer who is found to have violated the FFCRA acts “reasonably” and “in good faith” when all of the following facts are present:

1. The employer remedies any violations, including by making all affected employees whole as soon as practicable. As explained in a Joint Statement by the Department, the Treasury Department and the Internal Revenue Service (IRS) issued on March 20, 2020, [1] this program is designed to ensure that all covered employers have access to sufficient resources to pay required sick leave and family leave wages. [2]
2. The violations of the Act were not “willful” based on the criteria set forth in McLaughlin v. Richland Shoe, 486 U.S. 128, 133 (1988) (the employer “either knew or showed reckless disregard for the matter of whether its conduct was prohibited…”).
3. The Department receives a written commitment from the employer to comply with the Act in the future.

For further information, the WHD also released a Frequently Asked Questions specifically about the posting requirements, and a Field Assistance Bulletin describing WHD’s 30-day non-enforcement policy. This guidance is in addition to guidance released earlier this week that explained how employers and employees could take advantage of the benefits and relief offered by the FFCRA. The earlier guidance included a fact sheet for employees, a fact sheet for employers, and a Q&A document. Additional guidance from the WHD regarding the FFCRA is also expected.

If you have any questions or concerns about COVID-19 and its implications for your business and employees, Montgomery McCracken’s Labor and Employment attorneys are available to assist. Visit the firm’s Coronavirus (COVID-19) Resource Center for more information and updates on this constantly evolving situation.

[1] https://www.dol.gov/newsroom/releases/osec/osec20200320

[2] For purposes of this non-enforcement policy, employers who are eligible for tax credits but who have insufficient cash flow should make payment of sick leave or family leave wages as soon as possible, but not later than seven 7 calendar days after the employer has withdrawn an amount equal to the required paid sick leave and expanded family and medical leave wages from the employer’s Federal payroll tax deposits or, to the extent such deposits are not sufficient, has received a refund of the credit amount from the IRS to cover the required wages.