UPDATE: Today, April 1, 2020, the U.S. Department of Labor (DOL) promulgated temporary regulations regarding the Families First Coronavirus Response Act (FFCRA) which went into effect on April 1. These temporary regulations reaffirm the guidance issued by the DOL in its previously issued Q&As. The IRS also got into the game on Tuesday evening, by issuing a directive that, among other things, limits the number of caretakers who can take paid leave for a child whose school or childcare facilities have been closed.
Reed Group is reviewing both the DOL and IRS updates and will provide a more in-depth analysis of the potential impact on employers and their workers.
The Families First Coronavirus Response Act (FFCRA) goes into effect on April 1, 2020. Since the FFCRA was signed into law on March 18, 2020 (as we reported here), the U.S. Department of Labor (DOL) has issued a series of guidelines and Q&As to help employers navigate the new required benefits. On Tuesday, March 24, 2020, the DOL issued fourteen Q&As to provide clarification for employers who must prepare to implement the new Emergency Family and Medical Leave Extension Act and the Emergency Paid Sick Leave Act. We covered some of these questions during our webinar on March 25, 2020, “Ten Things Employers Need to Know Now About Leave Law and Coronavirus,” which may be viewed via our Resources webinar list, here. The DOL also issued a mandatory posting notification about the FFCRA and employee rights that employers must post in their workplaces. Continuing their very busy week, the DOL issued a second set of Q&As last Thursday and an additional set on Sunday providing further guidance for employers trying to stay compliant with the Act.
DOL Q&A’s: Basic Questions
The DOL has provided over 58 Q&As to the most frequently asked questions by employers. We’ll focus on some of the top questions here but recommend a review of all 58 Q&As on the DOL website.
When Does the Act Take Effect?
The DOL clarified that the FFCRA goes into effect on April 1, 2020. Many employers assumed the start date would be April 2, 2020 because the law provided that it would take effect not later than 15 days after enactment, which was March 18, 2020. However, the DOL set April 1 as the effective date, meaning that the FFCRA will apply to leaves taken between April 1 and December 31, 2020. Employers can expect to see an increase in leave requests due to the new leave reasons and expanded eligibility provided by the FFCRA.
Are Private Sector Employers with 500 or more Employee’s Subject to the Act?
Large private sector employers can breathe a sigh of relief as those with 500 or more employees are not covered by the FFCRA.
Who is a covered employer that must provide paid sick leave and expanded family and medical leave under the FFCRA?
Generally, if you employ fewer than 500 employees you are a covered employer that must provide paid sick leave and expanded family and medical leave. Certain employers with fewer than 50 employees may be exempt from the Act’s requirements to provide certain paid sick leave and expanded family and medical leave. Certain public employers are also covered under the Act and must provide paid sick leave and expanded family and medical leave.
How Do I Calculate the Number of Employees to Determine if I’m a Covered Employer?
The DOL provides the following guidance to determine private employer coverage:
1. The number of employees will include all full- and part-time employees within the United States, which includes any State of the United States, the District of Columbia, or any Territory or possession of the United States.
Employers should include employees on leave, temporary employees who are jointly employed by your organization and another employer (regardless of whether the jointly employed employees are maintained on only your or another employer’s payroll), and day laborers supplied by a temporary agency (regardless of whether you are the temporary agency or the client firm if there is a continuing employment relationship).
2. Independent contractors, as defined by the Fair Labor Standards Act (FLSA), are not considered employees for purposes of the 500-employee threshold.
The DOL also provided guidance utilizing the integrated employer test under the Family and Medical Leave Act of 1993 (FMLA). If two entities are an integrated employer under the FMLA, then employees of all entities making up the integrated employer will be counted in determining employer coverage. Employers should work with their attorney to determine whether their corporate structure requires them to comply with the law as a covered employer.
How much will an employee be paid while taking paid sick leave or expanded family and medical leave under the FFCRA?
It depends on their normal schedule as well as why they are taking leave.
If they are taking paid sick leave because they are unable to work or telework due to a need for leave because they (1) are subject to a Federal, State, or local quarantine or isolation order related to COVID-19; (2) have been advised by a health care provider to self-quarantine due to concerns related to COVID-19; or (3) are experiencing symptoms of COVID-19 and are seeking medical diagnosis, they will receive for each applicable hour the greater of:
- their regular rate of pay,
- the federal minimum wage in effect under the FLSA, or
- the applicable State or local minimum wage.
In these circumstances, they are entitled to a maximum of $511 per day, or $5,110 total over the entire paid sick leave period. If they are taking paid sick leave because they are: (1) caring for an individual who is subject to a Federal, State, or local quarantine or isolation order related to COVID-19 or an individual who has been advised by a health care provider to self-quarantine due to concerns related to COVID-19; (2) caring for their child whose school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons; or (3) experiencing any other substantially-similar condition that may arise, as specified by the Secretary of Health and Human Services, they are entitled to compensation at 2/3 of the greater of the amounts above. Under these circumstances, they are subject to a maximum of $200 per day, or $2,000 over the entire two-week period.
If they are taking expanded family and medical leave, they may take paid sick leave for the first ten days of that leave period, or may substitute any accrued vacation leave, personal leave, or medical or sick leave they have under the employer’s policy. For the following ten weeks, they will be paid for leave at an amount no less than 2/3 of their regular rate of pay for the hours they would be normally scheduled to work. The regular rate of pay used to calculate this amount must be at or above the federal minimum wage, or the applicable state or local minimum wage. However, they will not receive more than $200 per day or $12,000 for the twelve weeks that include both paid sick leave and expanded family and medical leave when they are on leave to care for their child whose school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons.
Should Overtime Hours be Included When Calculating an Employee’s Pay?
Yes, under the Emergency Family and Medical Leave Expansion Act, employers must pay an employee for the hours the employee would have been normally scheduled to work even if that is more than 40 hours in a week. (Remember, pay under that part of the FFCRA is set at two-thirds of the employee’s wages up to a maximum of $200 per day and $10,000 in the aggregate after the first 10 days of unpaid leave when an employee is unable to work due to need to care for a minor son or daughter if the child’s school or place of child care has been close due to a public health emergency.) However, pay does not need to include a premium for overtime hours.
The Emergency Paid Sick Leave Act, however, requires employers to pay only up to 80 hours over a two-week period for a full-time employee. For example, an employee who is scheduled to work 50 hours a week may take 50 hours of paid sick leave in the first week and 30 hours of paid sick leave in the second week. In any event, the total number of hours paid under the Emergency Paid Sick Leave Act is capped at 80. Part-time employees are entitled to emergency paid sick leave for the average number of work hours in a two-week period. Remember that there are caps on the amount that an employer must pay each employee depending on the reason for which the employee is using emergency paid sick leave. If the employee is using paid sick leave for his or her own COVID-19 symptoms, quarantine order or doctor-recommended self-isolation, the employee is entitled to 100% of his or her regular rate of pay for those 80 hours, up to $511 per day ($5,110 in the aggregate). If the employee is using paid sick leave to care for an individual who is subject to a quarantine order, doctor-recommended self-quarantine, to care for a minor son or daughter whose school or place of care has been closed, or the employee is experiencing substantially similar conditions as specified by the Secretary of Health and Human Services, the employee is entitled to two-thirds of his or her regular rate of pay for those 80 hours, up to $200 per day ($2,000 in the aggregate).
Can an Employee Take 80 Hours of Paid Sick Leave for Themselves and then Take Additional Leave Time for Another Reason?
The DOL’s answer would be no. An employee may take up to two weeks—or ten days—(80 hours for a full-time employee, or for a part-time employee, the number of hours equal to the average number of hours that the employee works over a typical two-week period) of paid sick leave for any combination of qualifying reasons. However, the total number of hours entitlement is capped at 80 hours under the Emergency Paid Sick Leave Act.
Can an Employee Receive Both Paid Sick Leave and Expanded Family and Medical leave?
Yes, if they are at home with a child because his or her school or place of care is closed, or the childcare provider is unavailable. As the DOL interprets the law, the employee may be eligible for both types of leave, but only for a total of twelve weeks of paid leave. Up to 80 hours (full-time employee) of emergency paid sick leave may be used during the first two weeks of leave for this reason which would run concurrently with the first 10 days of unpaid leave under the Emergency Family and Medical Leave Expansion Act. Thereafter, the employee would be entitled to two-thirds of his or her regular pay, up to the cap, for an additional 10 weeks. Importantly, the only reason for which the Emergency Family and Medical Leave Expansion Act may be used is for care of a minor child whose school or childcare provider is closed so that is the only scenario where both of these new paid leave benefits would apply.
What is the Employee’s regular rate of pay for purposes of the FFCRA?
For purposes of the FFCRA, the regular rate of pay used to calculate an employee’s paid leave is the average of their regular rate over a period of up to six months prior to the date on which they take leave. If the employee has not worked for their current employer for six months, the regular rate used to calculate their paid leave is the average of their regular rate of pay for each week they have worked for their current employer. If the employee is paid with commissions, tips, or piece rates, these amounts will be incorporated into the above calculation to the same extent they are included in the calculation of the regular rate under the FLSA. The employer can also compute this amount for each employee by adding all compensation that is part of the regular rate over the above period and divide that sum by all hours actually worked in the same period.
Does the FFCRA Convert the FMLA into a Paid Leave Program?
No, the DOL makes clear that the FMLA has not been converted into a paid leave program, and that the only type of family and medical leave that is paid leave is under the expanded family and medical leave law under FFCRA which sunsets on December 31, 2020.
Is the FFCRA Retroactive?
Many employers have asked whether the FFCRA is retroactive for leaves taken before the April 1, 2020 effective date. The DOL makes clear that the Act only applies to leaves taken after April 1st.
What Records Do I need to Keep When My Employee Takes Paid Sick Leave or Expanded Family and Medical Leave?
Very important to have clarity from the DOL on this. Private sector employers that provide paid sick leave and expanded family and medical leave required by the FFCRA are eligible for reimbursement of the costs of that leave through refundable tax credits. If you intend to claim a tax credit under the FFCRA for your payment of the sick leave or expanded family and medical leave wages, you should retain appropriate documentation in your records. You should consult Internal Revenue Service (IRS) applicable forms, instructions, and information for the procedures that must be followed to claim a tax credit, including any needed substantiation to be retained to support the credit. The employer is not required to provide leave if materials sufficient to support the applicable tax credit have not been provided. If one of your employees takes expanded family and medical leave to care for his or her child whose school or place of care is closed, or child care provider is unavailable, due to COVID-19, you may also require your employee to provide you with any additional documentation in support of such leave, to the extent permitted under the certification rules for conventional FMLA leave requests. For example, this could include a notice that has been posted on a government, school, or day care website, or published in a newspaper, or an email from an employee or official of the school, place of care, or childcare provider.
What documents do employees need to give provide their employer to get paid sick leave or expanded family and medical leave?
The employee must provide to the employer documentation in support of their paid sick leave as specified in applicable IRS forms, instructions, and information.
An employer may also require the employee to provide information in support of the expanded family and medical leave taken to care for their child whose school or place of care is closed, or childcare provider is unavailable, due to COVID-19-related reasons. For example, this may include a notice of closure or unavailability from the child’s school, place of care, or child care provider, including a notice that may have been posted on a government, school, or day care website, published in a newspaper, or emailed to them from an employee or official of the school, place of care, or child care provider. The employer must retain this notice or documentation in support of expanded family and medical leave, including while the employee may be taking unpaid leave that runs concurrently with paid sick leave if taken for the same reason.
Please also note that all existing certification requirements under the FMLA remain in effect if the employee is taking leave for one of the existing qualifying reasons under the FMLA.
Does FFCRA allow an employee to telework?
If an employer permits it, an employee may telework or work at a location other than their normal workplace. Employers must pay their employees who are working remotely their normal wages and such employees would not be entitled to benefits under the FFCRA. Employees would only be entitled to paid benefits under the FFCRA if they are unable to perform their work tasks or work the required hours, whether at the workplace or at home, due to covered COVID-19 reasons.
May an employee take paid sick leave or expanded family and medical leave intermittently while teleworking?
Another important clarification by the DOL. Yes, an employee may take FFCRA-provided leave intermittently if his or her employer allows it and if the employee is unable to telework a normal schedule of hours due to one of the qualifying reasons in the Emergency Paid Sick Leave Act. Similarly, if an employee is prevented from teleworking a normal schedule of hours because of needing to care for a child whose school or place of care is closed, or child care provider is unavailable, because of COVID-19 related reasons, the employee and employer may agree that the employee may take expanded family medical leave intermittently while teleworking.
Employers and employees may agree upon the increments for intermittent leave. For example, if both agree on a 90-minute increment, the employee could telework from 1:00 PM to 2:30 PM, take leave from 2:30 PM to 4:00 PM, and then return to teleworking.
The DOL encourages employers and employees to collaborate to achieve flexibility and meet mutual needs and is supportive of such voluntary arrangements that combine telework and intermittent leave.
May an employee take paid sick leave intermittently while working at his or her usual worksite (as opposed to teleworking)?
It depends on why the employee is taking paid sick leave and whether the employer agrees. Unless the employee is teleworking, paid sick leave for qualifying reasons related to COVID-19 must be taken in full-day increments. It cannot be taken intermittently if the leave is being taken because the employee:
- is subject to a Federal, State, or local quarantine or isolation order related to COVID-19;
- has been advised by a health care provider to self-quarantine due to concerns related to COVID-19;
- is experiencing symptoms of COVID-19 and seeking a medical diagnosis;
- is caring for an individual who either is subject to a quarantine or isolation order related to COVID-19 or has been advised by a health care provider to self-quarantine due to concerns related to COVID-19; or
- is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services.
May an employee take expanded family and medical leave intermittently while his or her child’s school or place of care is closed, or childcare provider is unavailable, due to COVID-19 related reasons, if the employee is not teleworking?
Yes, but only with the employer’s permission.
If an employer closed a worksite before April 1, 2020 (the effective date of the FFCRA), can the affected employees still get paid sick leave or expanded family and medical leave?
No. If an employee lost their job or stopped receiving pay because his or her employer shut down prior to April 1, 2020, the employee will not get paid sick leave or expanded family and medical leave under the FFCRA. However, the employee may be eligible for unemployment insurance benefits. This is true whether the employer closes the worksite for lack of business or because it is required to close pursuant to a Federal, State, or local directive. If an employer is paying its employees pursuant to a paid leave policy or State or local requirements, those employees will not be eligible for unemployment compensation.
If an employer closes a worksite on or after April 1, 2020 (the effective date of the FFCRA), but before employees go out on leave, can those employees still get paid sick leave and/or expanded family and medical leave? What if the employer closes while employees are out on FFCRA leave?
No. If an employer closes after the FFCRA’s effective date but before employees requested leave, affected employees would not get FFCRA paid sick leave or expanded family and medical leave, but may be eligible for unemployment insurance benefits. If an employer closes while employees are on FFCRA paid sick leave or expanded family and medical leave, the employer must pay for any paid sick leave or expanded family and medical leave used by employees before the employer closed. Then, as of the date the employer closes, employees would no longer entitled to paid sick leave or expanded family and medical leave but may be eligible for unemployment insurance benefits.
If an employer reduces scheduled work hours, can affected employees use paid sick leave or expanded family and medical leave for the hours that they are no longer scheduled to work?
No. If the employer reduces work hours because it does not have work, an employee may not use FFCRA paid sick leave or expanded family and medical leave for the hours they are no longer scheduled to work. This is because the employee is not prevented from working those hours due to a COVID-19 qualifying reason, even if the reduction in hours was somehow related to COVID-19.
May an employee collect unemployment insurance benefits for time in which they receive pay for paid sick leave and/or expanded family and medical leave?
No. If the employer provides FFCRA paid sick leave or expanded family and medical leave, the employee is not eligible for unemployment insurance. However, each State has its own unique set of rules; and DOL recently clarified additional flexibility to the States (UIPL 20-10) to extend partial unemployment benefits to workers whose hours or pay have been reduced.
Does the employer have to continue health coverage while an employee takes paid sick leave or expanded family and medical leave?
If the employer provides group health coverage that the employee has elected, they are entitled to continued group health coverage during expanded family and medical leave on the same terms as if the employee continued to work. If the employee is enrolled in family coverage, the employer must maintain coverage during the expanded family and medical leave. However, the employee generally must continue to make any normal contributions to the cost of their health coverage. See WHD Fact Sheet 28A: https://www.dol.gov/agencies/whd/fact-sheets/28a-fmla-employee-protections.
May an employee use a preexisting leave entitlement and FFCRA paid sick leave and expanded family and medical leave concurrently for the same hours?
No double dipping is allowed. If an employee is eligible to take paid sick leave or expanded family and medical leave under the FFCRA, as well as paid leave that is already provided by the employer, unless the employer agrees, the employee must choose one type of leave to take. The employee may not simultaneously take both, unless the employer agrees to allow supplementation of the amount an employee receives from paid sick leave or expanded family and medical leave under the FFCRA.
May an Employer supplement or adjust the pay mandated under the FFCRA with paid leave that their employee may have under the company paid leave policy?
Yes, if the employee chooses to use existing leave the employer has provided. Otherwise, the answer would be no. Paid sick leave and expanded family medical leave under the FFCRA is in addition to employees’ preexisting leave entitlements. Under the FFCRA, the employee may choose to use existing paid vacation, personal, medical, or sick leave from a company paid leave policy to supplement the amount they receive from FFCRA paid sick leave or expanded family and medical leave, up to the employee’s normal earnings. However, the employer is not required to permit an employee to use existing paid leave to supplement the amount they receive from FFCRA paid sick leave or expanded family and medical leave. Importantly, under the FFCRA, only the employee may decide whether to use existing paid vacation, personal, medical, or sick leave from a company paid leave policy to supplement the amount the employee receives from paid sick leave or expanded family and medical leave. The employee would have to agree to use existing paid leave under the paid leave policy to supplement or adjust the paid leave under the FFCRA. An employer may not require use of company-provided paid benefits.
If I am an employer, may I supplement or adjust the pay mandated under the FFCRA with paid leave that the employee may have under my paid leave policy?
If your employee chooses to use existing leave you have provided, yes; otherwise, no. Paid sick leave and expanded family medical leave under the FFCRA is in addition to employees’ preexisting leave entitlements, including federal employees. Under the FFCRA, the employee may choose to use existing paid vacation, personal, medical, or sick leave from your paid leave policy to supplement the amount your employee receives from paid sick leave or expanded family and medical leave, up to the employee’s normal earnings. Note, however, that you are not entitled to a tax credit for any paid sick leave or expanded family and medical leave that is not required to be paid or exceeds the limits set forth under Emergency Paid Sick Leave Act and the Emergency Family and Medical Leave Expansion Act.
However, you are not required to permit an employee to use existing paid leave to supplement the amount your employee receives from paid sick leave or expanded family and medical leave. Further, you may not claim, and will not receive tax credit, for such supplemental amounts.
Can an employer pay their employees more than they are entitled to receive for paid sick leave or expanded family and medical leave and get a tax credit for the entire amount paid to them?
No. An employer can pay their worker in excess of FFCRA requirements but cannot later obtain a tax credit for amounts in excess of the FFCRA’s statutory limits.
Assuming I am a covered employer, which of my employees are eligible for paid sick leave and expanded family and medical leave?
Both of these new provisions use the employee definition as provided by the Fair Labor Standards Act, thus all of your U.S. (including Territorial) employees who meet this definition are eligible including full-time and part-time employees, and “joint employees” working on your site temporarily and/or through a temp agency. However, if you employ a health care provider or an emergency responder you are not required to pay such employee paid sick leave or expanded family and medical leave on a case-by-case basis. And certain small businesses may exempt employees if the leave would jeopardize the company’s viability as a going concern. There is one difference regarding an employee’s eligibility for paid sick leave versus expanded family and medical leave. While your employee is eligible for paid sick leave regardless of length of employment, your employee must have been employed for 30 calendar days in order to qualify for expanded family and medical leave. For example, if your employee requests expanded family and medical leave on April 10, 2020, he or she must have been your employee since March 11, 2020.
Do Employees have the right to return to work if they are taking paid sick leave or expanded family and medical leave under the Emergency Paid Sick Leave Act or the Emergency Family and Medical Leave Expansion Act?
Generally, yes. In light of Congressional direction to interpret requirements among the Acts consistently, the Wage and Hour Division (WHD) clarifies that the Acts require employers to provide the same (or a nearly equivalent) job to an employee who returns to work following leave. In most instances, the employee is entitled to be restored to the same or an equivalent position upon return from paid sick leave or expanded family and medical leave. Thus, the employer is prohibited from firing, disciplining, or otherwise discriminating against an employee because they took paid sick leave or expanded family and medical leave.
However, employees are not protected from employment actions, such as layoffs, that would have affected them regardless of whether they took leave. This means the employer can conduct layoffs for legitimate business reasons, such as the closure of a worksite. Your employer must be able to demonstrate that you would have been laid off even if you had not taken leave. An employer may also refuse to return an employee to work in the same position if they are a highly compensated “key” employee as defined under the FMLA, or if the employer has fewer than 25 employees, and the employee took leave to care for their own son or daughter whose school or place of care was closed, or whose child care provider was unavailable, and all four of the following hardship conditions exist:
- the position no longer exists due to economic or operating conditions that affect employment and due to COVID-19 related reasons during the period of the leave;
- the employer made reasonable efforts to restore the employee to the same or an equivalent position;
- the employer makes reasonable efforts to contact the employee if an equivalent position becomes available; and
- the employer continues to make reasonable efforts to contact the employee for one year beginning either on the date the leave related to COVID-19 reasons concludes or the date 12 weeks after the leave began, whichever is earlier.
Does an employee qualify for leave for a COVID-19 related reason even if they have already used some or all of their leave under the Family and Medical Leave Act (FMLA)?
If employee is an eligible employee, they are entitled to paid sick leave under the Emergency Paid Sick Leave Act regardless of how much leave they have taken under the FMLA. However, if the employer was covered by the FMLA prior to April 1, 2020, eligibility for expanded family and medical leave depends on how much leave the employee has already taken during the 12-month period that the employer uses for FMLA leave. The employee may take a total of 12 workweeks for FMLA or expanded family and medical leave reasons during a 12-month period. If the employee already taken 12 workweeks of FMLA leave during this 12-month period, they may not take additional expanded family and medical leave.
If an Employee takes paid sick leave under the Emergency Paid Sick Leave Act, does that count against other types of paid sick leave to which they are entitled to under State or local law, or the employer’s policy?
No. Paid sick leave under the Emergency Paid Sick Leave Act is in addition to other leave provided under Federal, State, or local law; an applicable collective bargaining agreement; or your employer’s existing company policy.
May the Employee use paid sick leave and expanded family and medical leave together for any COVID-19 related reasons?
No. The Emergency Family and Medical Leave Expansion Act applies only when the employee is on leave to care for their child whose school or place of care is closed, or whose childcare provider is unavailable, due to COVID-19 related reasons. However, the employee can take paid sick leave under the Emergency Paid Sick Leave Act for numerous other reasons.
Who is a “health care provider” who may be excluded by their employer from paid sick leave and/or expanded family and medical leave?
For the purposes of employees who may be exempted from paid sick leave or expanded family and medical leave by their employer under the FFCRA, a health care provider is anyone employed at any doctor’s office, hospital, health care center, clinic, post-secondary educational institution offering health care instruction, medical school, local health department or agency, nursing facility, retirement facility, nursing home, home health care provider, any facility that performs laboratory or medical testing, pharmacy, or any similar institution, employer, or entity. This includes any permanent or temporary institution, facility, location, or site where medical services are provided that are similar to such institutions.
When does the small business exemption apply to exclude a small business from the provisions of the Emergency Paid Sick Leave Act and Emergency Family and Medical Leave Expansion Act?
An employer, including a religious or nonprofit organization, with fewer than 50 employees (small business) is exempt from providing (a) paid sick leave due to school or place of care closures or child care provider unavailability for COVID-19 related reasons and (b) expanded family and medical leave due to school or place of care closures or child care provider unavailability for COVID-19 related reasons when doing so would jeopardize the viability of the small business as a going concern. A small business may claim this exemption if an authorized officer of the business has determined that:
a) The provision of paid sick leave or expanded family and medical leave would result in the small business’s expenses and financial obligations exceeding available business revenues and cause the small business to cease operating at a minimal capacity;
b) The absence of the employee or employees requesting paid sick leave or expanded family and medical leave would entail a substantial risk to the financial health or operational capabilities of the small business because of their specialized skills, knowledge of the business, or responsibilities; or
c)There are not sufficient workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the labor or services provided by the employee or employees requesting paid sick leave or expanded family and medical leave, and these labor or services are needed for the small business to operate at a minimal capacity.
Mandatory Poster
The other important action by the DOL last week was the issuance of a mandatory posting notice that covers employees’ rights under the new law. Under the new requirement, covered employers under must display the new poster in a conspicuous place on its premises, including all buildings, floors and breakrooms. The employer may also satisfy this requirement for a virtual workplace by emailing or direct mailing the notice to employees or posting the notice on an employee information internal or external website. The poster will be translated into different languages by the DOL at a later time.
Penalties and Enforcement
Some additional good news for employers regarding violations. Even though violation of the Act will subject employers to penalties under the Fair Labor Standards Act, the DOL 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.
ReedGroup will continue providing timely blog updates on leave-related COVID-19 legislation here.
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Information provided on this blog is intended for general educational use. It is not intended to provide legal advice. ReedGroup does not provide legal services. Consult an attorney for legal advice on this or any other topic.