Department of Labor Releases Required Poster and Issues Guidance and Update on Families First Coronavirus Response Act

March 2020

The U.S. Department of Labor (“DOL”) has now issued its preliminary guidance for employers on the implementation of the Families First Coronavirus Response Act (“FFCRA”). Most significantly, the DOL has now advised that the FFCRA will go into effect for employers on April 1, 2020, a day earlier than the previously-anticipated effective date of April 2, 2020. What this means is that employers now have less than a week before they have to comply with the Coronavirus Response Act. Other key highlights from the new DOL guidance are outlined below, and the HR & Employment practice group at FMJ will continue to keep you informed as additional guidance is released in the coming days. 

As a reminder, the FFCRA provides for two types of paid leave: 1) Emergency Family and Medical Leave Expansion Act; and 2) Emergency Paid Sick Leave Act. These new leave requirements provide for mandatory paid sick leave and dramatically expands the Family and Medical Leave Act (“FMLA”) on a temporary basis. Whereas, FMLA generally applies to employers with 50 or more employees, the FFCRA applies to certain employers with fewer than 500 employees.  Here are the highlights on the latest development:

Potential Exemptions for Small Businesses

We stated in our initial FFCRA update that there may be narrow exceptions to required compliance with the FFCRA, and the available new guidance indicates that companies with fewer than 50 employees may be exempt from providing certain paid leave for covered child care purposes under the FFCRA if providing such leave would jeopardize the viability of their business as a going concern. While DOL’s guidance thus far provides minimal clarification on this exemption, the agency has indicated that it intends to issue more details in the coming weeks. To learn more specifics about the FFCRA and review the DOL’s latest guidance, click here. If you believe you may qualify for an exception, you will need to properly document the basis for your reasoning. Please contact us for assistance in that regard.

Effective Date is April 1, 2020

The DOL’s preliminary guidance also clarifies that the provisions of the FFCRA are not retroactive, meaning that they apply only to eligible time off that is taken between April 1, 2020, and the FFCRA’s sunset date of December 31, 2020. As such, please be aware that if you have already provided paid time off to employees under the FFCRA or are intending to do so prior the Act’s effective date, you will still need to give eligible employees the full paid leave benefits they are entitled to receive under the FFCRA on or after April 1.

DOL FFCRA Poster Now Available and Required to Display

The DOL has released a model poster that employers can use to meet the employee notice requirements under the FFCRA. The model poster is now available here. This poster must be displayed in the workplace where it will be visible to employees. Companies who have employees working remotely can satisfy this notice requirement by emailing or direct mailing the poster to employees, or by posting it on the company’s internal or external website, in addition to displaying it in the physical workplace.

Potential Immediate Need for FFCRA Policy

Notwithstanding the model poster just released by the DOL, keep in mind that the poster does not comprehensively cover all details of the FFCRA. To help both employers and employees understand specifics of the leave provided under the FFCRA, including eligibility and implementation of the potential benefits, FMJ recommends that employers adopt and implement a separate stand-alone policy, which would serve as a temporary supplement to your current leave policies and would not require changing your employee handbook. Due to Minnesota’s Wage Theft Act, employers in this state have the additional obligation of providing employees with written notice of any changes to certain wages and benefits – including changes to their paid time off entitlements. FMJ also reminds employers that if they decide to change any other policies, reduce compensation or implement furloughs or layoffs, proper notice under the Minnesota Wage Act is required as well as compliance with other laws.

To comply with Minnesota law, Minnesota employers must inform their employees of the implementation of a stand-alone policy concerning the FFCRA benefits before the new paid leave entitlements go into effect on April 1, 2020. If you have questions or need to get a temporary policy in place, FMJ is prepared to assist quickly. Please contact FMJ’sHR & Employment attorneys Shannon McDonough at shannon.mcdonough@fmjlaw.com or Natolie Hochhausen at natolie.hochhausen@fmjlaw.com for more information.