The Families First Coronavirus Response Act (FFCRA), which includes the Emergency Paid Sick Leave Act and the Emergency Family and Medical Leave Expansion Act, paid leave provisions are effective on April 1, 2020 and apply to leave taken between April 1, 2020 and December 31, 2020. The Wage and Hour Division (WHD) of the Department of Labor issued detailed guidance and the required notice for employers to post on its website (https://www.dol.gov/agencies/whd/pandemic).
The WHD also confirmed an amnesty period on the Department pursuing FFCRA enforcement actions. According to a WHD Field Assistance Bulletin issued March 24, 2020, the WHD will “not bring enforcement actions against any public or private employer for violations of the Act occurring within 30 days 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” which include that:
- The employer remedies any violations, including by making all affected employees whole as soon as practicable. As explained in a Joint Statement by the Department, the Treasury Department and the Internal Revenue Service (IRS) issued on March 20, 2020, this program is designed to ensure that all covered employers have access to sufficient resources to pay required sick leave and family leave wages.
- The violations of the Act were not “willful” based on the criteria set forth in McLaughlin v. Richland Shoe, 486 U.S. 128, 133 (1988) (the employer “either knew or showed reckless disregard for the matter of whether its conduct was prohibited…”).
- The Department receives a written commitment from the employer to comply with the Act in the future.
The Department’s amnesty period does not necessarily apply to an individual’s right to bring a claim for violations of the FFCRA during the same period of time. The WHD’s guidance also confirmed the Secretary will publish regulations, and more specifically, regulations regarding an exemption for employers with 50 or less employees if compliance would jeopardize the viability of the business as a going concern, in April 2020.
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