The Department Of Labor Published Guidance On The Families First Coronavirus Response Act – Key Take
Since the Families First Coronavirus Response Act (the “FFCRA”) was enacted, the Department of Labor (“DOL”) published guidance for employers to understand their obligations under this new unprecedented legislation. A summary of the provisions of the FFCRA affecting employers can be found in our earlier blog post titled: The Newly Enacted Families First Coronavirus Response Act: What Does it Mean for Employers?. Below are a selection of provisions of the FFCRA on which the DOL recently provided guidance.
Posted Notice: The FFCRA requires employers with 500 or fewer employees to post a notice to employees. The DOL posted a model notice earlier this week that non-federal employers should use in order to comply with the notice requirement.
Documentation: If an employee takes paid sick leave or expanded FMLA leave, the employee must provide appropriate documentation in support of such leave to the employer. Employers should retain this documentation in order to claim a tax credit under the FFCRA.
Enforcement Delay: Subject to the employer acting “reasonably” and “in good faith,” the DOL will not bring enforcement actions against employers who violate the FFCRA within the first 30 days of its enactment, i.e. March 18, 2020 through April 17, 2020. According to Field Assistance Bulletin No. 2020-1, these conditions are met if:
(1) the employer remedies any violations, including making all affected employees whole as soon as practicable;
(2) the violations were not willful; and
(3) the employer provides the DOL with a written commitment to comply with the FFCRA in the future.
Relief for Employers with Fewer Than 50 Employees? Both the paid sick leave and expanded FMLA leave portions of the FFCRA provide that employers with fewer than 50 employees may be exempt from providing these benefits if doing so would jeopardize the viability of the business as a going concern. The DOL expects to publish regulations on how to meet these conditions in April 2020. For now, the guidance states that employers should document why the viability of their businesses would be jeopardized as a going concern, but that such documentation should not be sent to the DOL.
Additional Items of Note from the Recent DOL Guidance:
Please be advised there are provisions of the FFCRA that are not covered in this post, and that above examples are not specific to every employer’s situation. Attorneys at Wharton, Aldhizer & Weaver are available to assist with compliance and to answer any questions on these matters.
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