On March 25, 2020, the Federal Department of Labor, Wage and Hour Division, which is tasked with overseeing enforcement of the Emergency Family Medical Leave and Emergency Paid Sick Leave that are part of the Families First Coronavirus Response Act (“FFCRA”) provided guidance to employers on the notice they must distribute and how these new leave laws will be enforced. As a reminder, the FFCRA takes effect on April 1, 2020.

A. Mandatory Notices

Under this new statute, Employers are required to provide notice to their employees of the new leave benefits provided for in the FFCRA. The Department of Labor has provided a model notice, which we are including in this email for your reference. The notice must be posted in a conspicuous place on the Employer’s premises. If your employees report to a main office before going out on a worksite, then this notice need only be posted at the main office. Further, if there is a common break room used by all employees, the notice may be posted in the common break room to satisfy the notice requirements. As many employees are working remotely, the Department of Labor provides that this notice requirement may be satisfied by emailing or direct mailing a copy of the notice to all employees, or by posting this notice on an internal or external website. This notice is only available in English, and there is currently no requirement to post the notice in any other language. At this time, this does not have to be shared with any employees who have been laid off. However, new hires must be provided with this notice at the time of hire.

B. Counting 500 Employees

The leave provisions of the FFCRA apply to any employers who have less than 500 employees. The determination of whether a business has less than 500 employees is made on the day that the leave is being taken. Independent contractors are not counted as employees. However, businesses should include employees on leave, temporary employees who are jointly employed by the business, any other employees who are jointly employed by the business and another company, and day laborers. Typically, a corporation (including its separate establishments or divisions) are a single employer and its employees must each be counted towards the 500-employee threshold. As there are many nuisances and technicalities regarding joint employer issues, to the extent you have any questions or concerns as to whether your business exceeds the 500-employee threshold, please contact our office, or an attorney, to discuss.

C. Employers with Less than 50 Employees Showing that Providing Such Pay Would be a Hardship

The FFCRA exempts employers with 50 or less employees from having to provide paid emergency family medical leave and emergency sick leave only if providing paid leave would jeopardize the viability of the business as a going concern. The Department of Labor will provide further guidance in the regulations that they anticipate to file in April 2020. While waiting on these regulations, businesses who feel they may meet this exemption must properly document why they meet this exemption.

D. Employee Eligibility

To be eligible for these leave benefits, the employee must be employed by the employer for 30 days. Therefore, on the effective date, April 1, 2020, any employee who was on the payroll on or before March 2, 2020, is entitled to these leave benefits.

E. Employees Who are Separated, Terminated or Otherwise End Their Employment

These leave benefits are only in effect until December 31, 2020, and do not carryover the following year. Further, employees are not entitled to be paid out for any unused leave under this statute if their employment is terminated prior to December 31, 2020. Of course, whether an employee is entitled to be paid out on any other paid time off provided by the Company is subject to the terms of the employer’s existing paid time off policies.

F. Interplay Between the FFCRA and Existing PTO Policies

The leave provided under the FFCRA is provided in addition to any existing PTO policy that the Company already has in effect. Accordingly, employers may not use existing PTO policies to satisfy these leave requirements, and Employers must provide this leave in addition to any existing PTO employees are entitled to receive.

G. Penalties

The Department of Labor, Wage and Hour Division has placed a hold on enforcement until April 17, 2020, as long as, businesses are trying to comply, in good faith, and immediately agree to remedy any deficiencies when they are notified of the deficiency. Failing to provide the 80 hours of Emergency Paid Sick Leave is enforceable as a violation of the Fair Labor Standards Act (“FLSA”) and subject to the penalties set forth in Section 216 and Section 217 of the FLSA. These penalties include, but are not limited to, the amount of unpaid wages, liquidated damages equal to 100% for the unpaid wages, pre-judgment interest, attorneys’ fees and costs, also the Department of Labor may impose penalties up to $2,014 for each violation. Failing to provide the Emergency Family Medical Leave is subject to the penalty provision of the Family Medical Leave Act. Employees who sue their employer for violating the FMLA may seek recovery for: (a) backpay for any pay lost as a result of the employee trying to exercise their lawful rights under the Emergency FMLA; (b) front pay; (c) liquidated damages; and (d) attorneys’ fees and costs.

It is important that employers not take any retaliatory or discriminatory actions against employees who use the leave benefits provided for in the FFCRA.

Separately, an economic rescue package is set to be voted on by the U.S. Senate today. I will not summarize it here as it has not passed the House of Representatives nor has it been signed into law, and much could change between now and then. I only mention this because it could change a small or medium sized business’ decision on layoffs and/or terminations. We will update you as soon as we hear anything about such bill becoming a law.

The attorneys in Forchelli Deegan Terrana LLP’s Employment & Labor practice group will continue to keep you updated on any changes to your requirements as an employer as updates become available. Should you have any questions, do not hesitate to contact me at the below contact information. Battling the novel coronavirus is difficult for everyone. We are here if you need us. With best wishes for your, and your family’s health and safety.

Click here to download the FFCRA Employee Rights Poster.

Gregory S. Lisi
Partner-in-Charge, Employment & Labor practice group
GLisi@Forchellilaw.com | 516.248.1700