The U.S. Department of Labor (DOL) issued two Model Notice Posters and additional FFCRA enforcement guidance on March 25, 2020. The Model Notices as well as Fact Sheets, and Questions and Answers for Employers on Fair Labor Standards Act (FLSA) and Family Medical Leave Act (FMLA) compliance under the provisions of the FFCRA: Covid-19 and the American Workplace may be found here.
The DOL clarified that, for purposes of the FFCRA, employers who are covered under the Act are those with less than 500 employees as determined on the day leave is requested. This will require a calculation each instance an employee requests leave covered under the FFCRA, which will certainly be more difficult for those employers on the cusp than a determination on the April 1 date the FFCRA takes effect.
The DOL also issued a Field Bulletin indicating that its Wage and Hour Division (WHD), responsible for enforcing the FLSA and the FMLA, will observe a temporary period of non-enforcement of the FFCRA between March 18 through April 17, 2020, meaning the DOL WHD will not bring any enforcement actions against any public or private employer for violations of the FFCRA if certain criteria are met. Non-enforcement will only apply to those violations that are not “willful” or with reckless disregard for the FFCRA provisions but, instead, “reasonable” and in “good faith.” A violating employer must remedy any violations, making the employees whole as soon as practicable, and must submit a written commitment to the DOL to comply going forward. After April 17, the stay of enforcement will be lifted.
The Field Bulletin also states employers who are eligible for tax credits but who have insufficient cash flow should make payment of sick leave or family leave wages as soon as possible, but no later than seven (7) calendar days after the employer has withdrawn an amount equal to the required paid sick leave and/or expanded FML and medical leave wages from the employers’ federal payroll tax deposits or, if insufficient to cover wages, after the employer has received a refund of the credit amount from the IRS to cover the required wages. Employers should also know that the small business loans available in the FFCRA for payment of wages are only applicable to those employers who retain their employees.
Employers whose workforce is working remotely should make the Model Notices available to teleworkers through email or on any online database, in addition to posting where other employment posters are located throughout the workplace.
The HSB Employment Law Team remarked this week that, for the first time in our practices, information necessitating client alert blogs was being issued almost more than daily and we made the conscious choice not to post more than once a day lest we send our readers over the edge. Employers are faced with a number of distressing decisions necessitated by economic factors impacting business operations, and human resources professionals are charged with responding to those concerns, digesting the legal changes and responding to the COVID-19 pandemic within the compliance windows of the COVID-19-related laws, guidance, executive orders and proclamations while ensuring they are not running afoul of existing employment laws and regulations. This is indeed unprecedented times in our human resources world. We hope you are finding our resource list helpful, and we will continue to post as more matters arise that you need to know, to include what we are seeing regarding essential businesses, IRS tax guidance on the FFCRA, and SCDEW COVID-19 information. Please also be on the lookout for our webinars.