Update, March 26, 2020, 9:00am, Department of Labor Releases FFCRA Employee Rights Notice

On March 25, 2020, the Department of Labor (DOL) Wage and Hour Division released new content and guidance on its COVID-19 and the American Workplace website.  Among the new content, is the notice of employees’ rights under the Families First Coronavirus Response Act (FFCRA) that, according to the FFCRA, employees must “post and keep posted, in conspicuous places on the premises of the employer where notices to employees are customarily posted.”

Also among the new content on the DOL website, is the Families First Coronavirus Response Act Notice – Frequently Asked Questions, which provides answers to common questions about an employer’s obligations related to the FFCRA notice.  For example, the Frequently Asked Questions addresses how to post the notice when an employer’s workforce is largely teleworking.  The DOL states that in these circumstances, employers should email the notice to employees, direct mail the notice to employees, or post the notice on an employee informational internal or external website.  The Frequently Asked Questions also states that, while employers are not required to post the notice in multiple languages, the DOL is working to translate the notice to other languages.  The Frequently Asked Questions does not state when employers must post the FFCRA notice, but we recommend that employers post it no later than April 1, 2020, the effective date of the FFCRA.

The Field Assistance Bulletin 2020-1 is also among the new content on the DOL website.  The bulletin informs that the DOL will not bring enforcement actions against an employer for “violations of the Act 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.”  Generally speaking, an employer who violates the act “has made reasonable, good faith efforts to comply with the Act” when all of the following facts are present:

1. The employer remedies any violations, including by making all affected employees whole as soon as practicable.
2. The violations of the Act were not “willful,” i.e., the employer “either knew or showed reckless disregard for the matter of whether its conduct was prohibited…”
3. The Department receives a written commitment from the employer to comply with the Act in the future.

The Bulletin suggests that employers have until April 17, 2020, to comply fully with the FFCRA provided they are making reasonable, good faith efforts to do so, e.g., making necessary payroll modifications, completing calculations for coordinating leave accruals with FFCRA leave entitlements, etc. However, the Bulletin strongly implies that employers will have to remedy and make employees whole for any noncompliance between April 1 and April 17, 2020.  After April 17, 2020, the DOL will begin fully enforcing violations of the FFCRA

The DOL COVID-19 and the American Workplace website is available here: https://www.dol.gov/agencies/whd/pandemic

The Employee Rights: Paid Sick Leave and Expanded Family and Medical Leaver under The Families First Coronavirus Response Act (FFCRA) is available here: https://www.dol.gov/sites/dolgov/files/WHD/posters/FFCRA_Poster_WH1422_Non-Federal.pdf

The Families First Coronavirus Response Act Notice – Frequently Asked Questions is available here: https://www.dol.gov/agencies/whd/fmla/pandemic

The Field Assistance Bulletin No. 2020-1 is available here: https://www.dol.gov/agencies/whd/field-assistance-bulletins/2020-1