Although the Department of Labor (DOL) has yet to issue the regulations regarding the FFCRA, this week, the DOL issued guidance for employers who are subject to the paid leave requirements of the Families First Coronavirus Response Act (FFCRA). The Wage & Hour Division’s website, COVID-19 and the American Workplace, contains links to various Fact Sheets, Q&A documents, the required posters to be displayed, and a Field Assistance Bulletin (2020-1). While some aspects of the DOL publications remain unclear, taken as a whole, these resources provide guidance for prudent employers seeking to navigate these complicated issues. Update, 3/26: On Thursday, March 26, the DOL issued revised documents, including updated posters to clarify rights and obligations consistent with the observations herein.
1. Effective Date
Contrary to earlier suggestions, the DOL guidance specifies that April 1, 2020—and not April 2, 2020—is the effective date of the FFCRA leave provisions. The earlier speculation likely arose from the language of the bill itself, which stated these provisions would “take effect not later than 15 days after the date of enactment”—or on April 2, 2020, at the latest. The DOL has now made express that the provisions become effective within that time frame—on April 1, 2020.
2. Posting of the Required Poster
The DOL has published the model poster on employee rights regarding paid sick leave and the expanded family and medical leave under the FFCRA: https://www.dol.gov/sites/dolgov/files/WHD/posters/FFCRA_Poster_WH1422_Non-Federal.pdf [Update, 3/26: Revised poster is posted at the link.]
The DOL also posted FAQs regarding the posting requirement, which can be found here: https://www.dol.gov/agencies/whd/pandemic/ffcra-poster-questions
The DOL has taken the position that employers can satisfy the FFCRA’s notice requirement by “emailing or direct mailing this notice to employees or posting this notice on an employee information internal or external website.” The plain text of the FFCRA does not require this, simply directing that the poster be posted “in conspicuous places on the premises of the employer where notices to employees are customarily posted.” (Emphasis added.) However, the DOL’s alternative posting ideas may be foreshadowing the forthcoming regulations in recognition of the fact that many employees and employers are teleworking, furloughed, or otherwise not permitted to be at the workplace due to “shelter-in-place” orders around the country. The most prudent course of action is likely to err on the side of excess, for example: physically post the paper posters in the workplace to the extent safe and healthy to do so; electronically post the notice on any internet or intranet networks routinely used by employees for workplace communication; and send a copy or link to the notice via U.S. Mail or e-mail to employees.
3. Text of the Required Poster
Update, 3/26: On Thursday, March 26, the DOL issued a modified poster, revising the sentence highlighted below to clarify that an employee “caring for his or her child whose school or place of care is closed (or child care provider is unavailable) due to COVID-19 related reasons” is entitled to “[u]p to 12 weeks of paid sick leave and expanded family and medical leave paid at 2/3 for qualifying reason #5 below for up to $200 daily and $12,000 total.” As we noted yesterday, previously…
Some confusion centered on one section of the poster’s text—specifically, the portion describing the leave entitlement for an employee “caring for his or her child whose school or place of care is closed (or child care provider is unavailable) due to COVID-19 related reasons.” (Qualifying Reason #5.) The poster referred to “10 weeks more of paid sick leave and expanded family and medical leave paid at 2/3 for qualifying reason #5 below for up to $200 daily and $12,000 total.” Of course, 10 weeks of pay up to $200 daily is only $10,000. It appears clear now that the DOL intended this to refer to 10 “weeks more” following the initial 80-hour entitlement
The DOL’s Fact Sheet, Families First Coronavirus Response Act: Employer Paid Leave Requirements, clarified this seeming omission on the poster by expressly articulating more accurately:
For leave reason (5): employees taking leave shall be paid at 2/3 their regular rate or 2/3 the applicable minimum wage, whichever is higher, up to $200 per day and $12,000 in the aggregate (over a 12-week period—two weeks of paid sick leave followed by up to 10 weeks of paid expanded family and medical leave).
(Emphasis added.) If an employer posts the notice electronically and/or e-mails it to employees, it may be prudent to include a link to the DOL Fact Sheet as well, with a reference to the greater detail and explanation contained therein.
4. Temporary Non-Enforcement Period
The DOL Field Assistance Bulletin, available here, also states that the DOL’s Wage and Hour Division will not enforce the FFCRA for the period of March 18, 2020 through April 17, 2020.
These developments remain fluid, and employers should check back here or at the DOL’s website regularly for updates.