Families First Coronavirus Response Act: what employers should know

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By Theresa L. Nelson

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:

  1. 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.
  2. 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…”).
  3. 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.

 

Theresa Nelson’s practice focuses on representing and defending clients in complex labor & employment, commercial litigation, and general civil litigation. She represents clients in employment-related disputes including wage and hour, harassment, discrimination, disability accommodation (ADA), FMLA, wrongful or retaliatory discharge, breach of contract, restrictive covenants and intellectual property disputes. She is licensed in Kentucky and Ohio.

Strauss Troy is a full-service law firm that delivers solution-oriented legal services to clients through expertise, communication, and collaboration. With offices in Ohio and Kentucky, Strauss Troy serves clients in practice areas including corporate and business law, criminal and white collar defense, domestic relations and family law, labor and employment law, local government, real estate law, tax planning and compliance, and trust and estate planning.