On April 1st, the U.S. Department of Labor (“USDOL”) issued a temporary rule for the Families First Coronavirus Response Act (FFCRA). The temporary rule, among other things, confirmed that employees must give notice to their employers of the need to take leave and provide documentation to support paid sick leave and emergency family and medical leave. The IRS also provided guidance on needed documentation.
Enforcement Guidance
The USDOL announced in a Field Assistance Bulletin that it will not bring enforcement actions against any public or private employer for violations of the FFCRA occurring within 30 days of the enactment of the FFCRA, i.e. March 18 through April 17, 2020, provided that 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 the following facts are present:
- The employer remedies any violations, including by making all affected employees whole as soon as practicable.
- 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…”).
- The Department receives a written commitment from the employer to comply with the Act in the future.
If the public or private employer either (i) violates the Act willfully, (ii) fails to provide a written commitment to future compliance with the Act, or (iii) fails to remedy the violation upon notification by Department, the employee seeking payment, or a representative of that employee, including by making all affected employees whole as soon as practicable, the Department reserves its right to exercise its enforcement authority. After April 17, 2020, this limited stay of enforcement will be lifted, and the Department will fully enforce violations of the Act, as appropriate and consistent with the law.
USDOL Webinar
On Friday, April 3, 2020, the USDOL will post a recorded Webinar, to provide a more in-depth description of the FFCRA requirements. Click here to view the Webinar. Also, USDOL invites Webinar viewers to call the agency’s toll-free help line at 866-4US-WAGE to speak with a trained USDOL professional about any questions they may have.
Opportunity to Comment
The USDOL is hosting a national online dialogue. It has been extended until close of business on April 10, 2020, to provide employers and employees with an opportunity to offer their perspective as the Department develops compliance assistance materials and outreach strategies related to the implementation of the Families First Coronavirus Response Act.
Starting April 1, USDOL will launch a campaign to solicit feedback on the FFCRA compliance assistance tools as part of the national online dialogue. USDOL has issued questions and answers, posters, and fact sheets available to help employers understand their obligations and employees understand their rights under the FFCRA. USDOL wants to hear from the public: What about these tools is working? What isn’t working? How can we improve them to ensure they are understandable and accessible?
Operating in the midst of this pandemic is extremely challenging, especially when so many new laws and regulations are being passed. We will continue to provide updates on these changes. We stand ready to help you navigate through this crisis.
Kenneth Winkler, a shareholder at Berman Fink Van Horn, helps employers navigate the employment laws and regulations that govern the workplace.
