On March 18, 2020, President Trump signed the Families First Coronavirus Response Act (FFCRA) which, as we discussed in an earlier blog post, provides for paid emergency sick leave and paid emergency family leave in certain circumstances. The portion of the FFCRA that provides for paid emergency family leave is referred to as the Emergency Family and Medical Leave Expansion Act (EFMLEA) and the portion that provides for paid emergency sick leave is referred to as the Emergency Paid Sick Leave Act (EPSLA).

In yet another blog post, we discussed the first guidance documents relating to EFMLEA and EPSLA that were issued by the United States Department of Labor (USDOL) on March 24, 2020.

On March 26, 2020, USDOL published additional guidance documents, which are summarized below.

Notice Requirements

The FFCRA requires covered employers to post a notice advising employees of their rights under EPSLA and EFMLEA. USDOL has now released two model documents that will satisfy the notice requirements: one for federal workers and one for all other employees.

USDOL also issued a questions and answers document relating to the notice requirements. That document sheds light on exactly how and when notice must be provided.

Each covered employer must post a FFRCA-compliant notice, even if it is located in a state that provides greater protections than those available under EFMLEA and EPSLA.

The notice must be posted in a “conspicuous place” where all employees can easily see it. When employees report to multiple different worksites, but are also required to first report to a common main office or headquarters location, the notice need only be posted in that common main office or headquarters location. If employees report to different worksites without also regularly reporting to a common location, the notice must be posted within each work location. Additionally, if there is not a common space within a single building where all employees are regularly present, the notice must be posted in as many places within a single building as are necessary to ensure that each employee can easily see it.

For employers whose employees are working remotely, the notice requirement can be satisfied by mailing or e-mailing the notice to all employees, or posting it on an internal or external website.

Employers need not provide a copy of the notice to recently terminated employees or job applicants, although notice must be given to new hires through one of the methods described above.

Employers are not required to post the notice in languages other than English.

Temporary Non-Enforcement Period

USDOL also issued a Field Assistance Bulletin to the employees of its Wage and Hour Division, which provides guidance about a temporary period of non-enforcement of FFCRA requirements.

The temporary period of non-enforcement is essentially a grace period that will continue until April 17, 2020. USDOL will not bring enforcement actions against employers who fail to comply with the FFCRA prior to that date, so long as they made reasonable, good faith efforts to come into compliance. An employer meets this standard if:

  1. It remedies any violations, including by making all affected employees whole as soon as practicable.
  2. Its violations of FFCRA were not “willful.” A violation is willful if the employer knew its conduct violated the law, or it showed reckless disregard for whether its conduct violated the law.
  3. It provides USDOL with a written commitment to comply with the FFCRA in the future.

If an employer fails to satisfy any one of these conditions, USDOL reserves the right to bring an enforcement action during the grace period.

We expect that regulations and additional guidance relating EFMLEA and EPSLA will be forthcoming shortly, and we will continue to provide real-time updates.