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 fewer than 500 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.

• This notice should be placed in a conspicuous place or places in the workplace where all employees can see it. The notice may be transmitted to employees by email, direct mail, or on an internal or external website.
• The DOL has also stated that this notice does not need to be shared with recently laid off individuals or prospective employees.

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.

• Paid sick leave documentation to include:
  • Employee’s name;
  • Qualifying reason for requesting leave;
    • NOTE: there must be documentation to support this qualifying reason as well, such as a quarantine or isolation order, or documentation from a healthcare provider advising the employee to self-quarantine, or notices that a school, place of care, or childcare provider has closed or is unavailable;
  • Statement that the employee is unable to work, including telework, for the qualifying reason; and
  • Dates for which leave is requested.
• Expanded FMLA documentation to include:
  • Documentation used for standard FMLA requests.
  • This may include notices that have been posted on government, school or daycare websites, or published in a newspaper, or an email from an employee or official of the school, place of care, or childcare provider.

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:

• An employee may take paid sick leave or expanded FMLA intermittently while teleworking if the employer agrees and the employee is unable to work his or her normal schedule of hours due to a qualifying reason.
• Paid sick leave under qualifying reasons other than for childcare or school closings must be taken in full day increments if the employee is working at his or her usual worksite, rather than teleworking.
• Leave related to childcare or school closings may be taken intermittently for employees working at the usual worksite, subject to employer approval.
• If the employer furloughs or lays off employees due to lack of business or government-directed closure, paid sick leave and expanded FMLA benefits under FFCRA are not available to employees. However, employees may be able to collect unemployment insurance benefits.
• If an employer reduces an employee’s hours due to lack of business or government-directed closure, the employee is not entitled to paid sick leave or expanded FMLA benefits for those hours the employee is no longer scheduled to work.
• Employees may not take pre-existing paid leave concurrently with FFCRA paid sick leave or expanded FMLA leave unless the employer agrees to allow an employee to supplement FFCRA benefits with pre-existing paid leave, up to the employee’s normal earnings. Employers may only claim tax credits for those paid sick leave and expanded FMLA leave benefits under the FFCRA.
  

Update:  Some of the content in this post has been updated in light of recent changes made by the Department of Labor to FFCRA regulations and guidance.   Please see our April 13, 2020 post for this updated information.

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.