Yesterday the Department of Labor announced its first round of published guidance to provide information to employees and employers about how each will be able to take advantage of the protections and relief offered by the Families First Coronavirus Response Act (FFCRA). This guidance has answered some of the most common questions we have been receiving since the law’s passage last week, but some questions remain as to how the leave will be administered. The Department is expect to announce further guidance as the week progresses.
When are the leave benefits set to go into effect?
April 1, 2020.
If I am currently providing employees leave for reasons that qualify under the FFCRA, does that fulfill my obligations?
No. The benefits provided under the FFCRA are new benefits which must be provided effective April 1, 2020. An employer cannot apply those benefits retroactively to leave an employee takes during the month of March, and the employer is not eligible to receive tax credits for any benefits paid during March.
Are employees whose businesses are closed due to a state stay-at-home order eligible to receive benefits?
Probably not. While employees are eligible for up to 80 hours of paid sick leave due to a federal, state, or local isolation order, this likely would only apply when the individual employee is subject to an order. Where an employee is out of work due to a broader shelter-in-place or stay-at-home order, that employee would more likely qualify for unemployment insurance.
What notice are employers required to provide employees with?
Each covered employer must post in a conspicuous place on its premises a notice of FFCRA requirements. A model notice has been provided by the Department of Labor here.
Does the law apply to small businesses with less than 50 employees?
Generally, yes. However, the Department of Labor will be issuing more detail in forthcoming regulations for employers who believe providing the new benefits would jeopardize the viability of their business as a going concern. Employers who would wish to elect the small business exemption should document why their business meets the criteria identified by the Department of Labor.
With so many new rules, what if I violate one without knowing?
Employers who fail to provide the benefits as required by the FFCRA will be subject to the same potential penalties and enforcement as violations of the Fair Labor Standards Act and the Family Medical Leave Act. However, the Department of Labor will observe a temporary period of non-enforcement for the first 30 days after the Act takes effect, so long as the employer has acted reasonably and in good faith to comply with the Act. For purposes of this non-enforcement position, “good faith” exists when violations are remedied and the employee is made whole as soon as practicable by the employer, the violations were not willful, and the Department receives a written commitment from the employer to comply with the Act in the future.
Stay tuned to this blog for further developments in state and federal law as your business responds to the continuing challenges brought on by COVID-19. Please be sure to contact a member of the KMK Labor & Employment Practice Group with any further questions you may have.
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