Temporary Non-Enforcement of Families First Coronavirus Response Act and Workplace Posting Requirements
Labor & Employment Alert 03/25/20 Christopher L. Nickels, James Y. Wu
The Emergency Sick Leave and Expanded FMLA leave included in the Families First Coronavirus Response Act (“FFCRA” or the “Act”) becomes effective on April 1, 2020. Employers who are subject to the FFCRA should be working toward implementing and administering these leave benefits. Although many questions remain unanswered, the Department of Labor (“DOL”) has announced that it will observe a temporary period of non-enforcement of the FFCRA until April 17, 2020 to allow employers to come into compliance with the new law and reduce some of the anxiety of implementing a new leave program in less than one week. The DOL also published its model notice, which must be provided to all employees.
The DOL will not bring enforcement actions against any public or private employer for violations of the FFCRA between March 18 and April 17, 2020. Employers, however, must make reasonable, good faith efforts to comply with the Act. If an employer violates the new law before April 17, the DOL will not take enforcement action if all of the following are true:
1. The employer remedies any violations, including by making all affected employees whole as soon as practicable.
2. The violations are not willful. Willfulness occurs where the employer either knew or showed reckless disregard for whether its conduct was prohibited.
3. The Department receives a written commitment from the employer to comply with the Act in the future.
Notably, the DOL has stated that 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of sick leave or family leave wages as soon as possible, but not later than 7 calendar days after the employer has withdrawn an amount equal to the required paid sick leave and expanded family and medical leave wages from the employer’s Federal payroll tax deposits or, to the extent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.
Temporary non-enforcement is not a get-out-of-jail-free card, and employers must implement their leave provisions of the FFCRA by April 1. Nevertheless, the non-enforcement guidance provides some relief for employers who are not sure how to address open questions, and it allows employers to rectify mistakes. The DOL will be issuing implementing regulations to the FFCRA soon, which we hope will answer many open questions.
Model FFCRA Notice
The DOL has now published employee-facing posters that employers subject to the FFCRA must “post” and provide to employees. One poster is for Federal employees, and the other is for private sector employers (see links below). Additionally, the DOL has also published a set of FAQs regarding posting requirements. Here are some of the most significant points of guidance:
Which employers must post the notice: Only employers covered by the FFCRA (certain public sector employers and private sector employers with fewer than 500 employees) must post the applicable notice.
How must an employer post the notice: Importantly, given that many employees are working remotely, employers may satisfy posting requirements for the FFCRA “by emailing or direct mailing the notice to employees, or posting the notice on an employee information internal or external website." In addition, if possible, covered employers must post the applicable notice in a “conspicuous place on its premises.” This place should be the same area where other required federal and state notices/posters are already posted. Putting the notice in a binder available to employees is not adequate.
Who must receive the notices: The notice should be provided to all current employees. New hires must also receive the notices, “either by email, direct mail, or by posting this notice on the premises or on an employee information internal or external website." Individuals who have been laid off (or job applicants not yet hired) do not need to receive the notice because the DOL does not consider either group to be current employees.
The DOL’s FAQs regarding the posters also provide additional information, including that the DOL is working on translating the notices into other languages.
Click here for the DOL’s FAQs regarding the Notices.
Click here for the Employee Rights: Paid Sick Leave and Expanded Family and Medical Leave under The Families First Coronavirus Response Act (FFCRA) (non-Federal employees).
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