by Julie Ann Giammona, Alexandra P. Saddik and Jonathan R. Babione
Yesterday afternoon (March 24, 2020), the U.S. Department of Labor (DOL) issued its highly anticipated guidelines for the Families First Coronavirus Response Act (FFCRA). Most significantly, the guidelines mandate compliance with the Act commencing on April 1, not April 2, as was originally understood. The FFCRA states the leave provisions “shall take effect not later than 15 days after the date of enactment.” Because the Act was signed on March 18, the assumption was that the law would take effect on April 2, 15 days later. Such is not the case.
Though the Act will take effect on April 1, employers will be given a grace period until April 17 to comply so long as the employer demonstrates that it remedied all violations as soon as practicable and that said violations were not willful. Lastly, the employer must provide a written commitment to the DOL that it will comply with FFCRA moving forward.
Importantly, workplace posters are now available that describe the mandated leaves for employees pursuant to the FFCRA. The posters, which must be displayed in a prominent place in the workplace, can be found at the following link: https://www.dol.gov/agencies/whd/pandemic. Given the unprecedented degree of tele-commuting necessary due to COVID-19, the DOL also recommends emailing the posters to employees and posting them on the company website. Notice does not need to be provided to employees who were recently laid off but must be provided to new hires.
The DOL also issued fact sheets for both employees and employers as well as a Question and Answer document. All can be accessed at https://www.dol.gov/agencies/whd/pandemic. One point included in the fact sheets confirms that employees are allowed no more than a total of two weeks paid sick leave for any combination of the six reasons stated in the FFCRA. This means that an employee cannot take two weeks of paid sick leave for one reason, then two weeks of paid sick leave for a different reason.
Unfortunately, none of the guidelines address how employers with less than 50 employees apply for the waiver that is supposed to be available if complying with the FFCRA will jeopardize the viability of the business. However, the DOL did advise that employers should not send the DOL any documentation until further guidelines are issued. Businesses with less than 50 employees should prepare and maintain documentation that establishes how compliance would jeopardize the continued operation of its business. Future guidance from the DOL will be forthcoming on the specific process of how to apply for the waiver.
As we have seen, the legislative and regulatory landscape surrounding COVID-19 is fluid and ever changing. We caution you to consult with legal counsel when making employment decisions during this unprecedented time. Ferber Law remains available to assist with your needs. Stay well.
DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.