US DOL answers questions on new federal sick and family leave, issues new posters and announces limited amnesty

The US Department of Labor (DOL) issued guidance which answers a number of key questions on the new federal coronavirus paid sick leave and emergency Family and Medical Leave Act (FMLA) leave, including when the law takes effect, how to count employees for purposes of the 500-employee threshold, how to treat related employers and other key questions. The DOL also issued model paid sick leave posters and announced limited amnesty for violations through April 17th.

New federal paid sick leave and emergency FMLA leave

As summarized in more detail in our March 19 client alert, the Families First Coronavirus Response Act (FFCRA) requires private employers with fewer than 500 employees and governmental employers (regardless of size), to provide up to 10 days of paid sick leave and up to 12 weeks of emergency Family and Medical Leave Act (FMLA) leave if an eligible employee is unable to work or telework due to certain coronavirus-related events. The law permits employers of healthcare providers and emergency responders to opt out and provides an exemption for businesses with fewer than 50 employees where compliance would jeopardize the viability of the business as a going concern.

DOL guidance

The DOL guidance, which is in the form of employer and employee fact sheets and questions and answers (Q&As), answers some but not all key questions related to the new leave law, including:

• When does the law takes effect? April 1 instead of the expected April 2 effective date.
• How are employees counted to determine whether a private employer has fewer than 500 employees and is therefore generally subject to the new paid sick leave and emergency FMLA leave provisions? Count all US employees (including full- and part-time employees, employees on leave and temporary employees) but do not count independent contractors (gig workers) or non-US employees.
• How are employees of related employers, divisions and subsidiaries treated? Look to existing joint employer and integrated employer tests under the Fair Labor Standards Act (FLSA) and FMLA.
• May an employee may take multiple 10-day paid sick leave periods for different qualifying events? No.
• May an employer deny paid sick leave because it provided paid sick leave prior to April 1? No.
• Are other types of FMLA now paid? No.
• Is paid sick leave and emergency FMLA leave retroactive? No.
• How does an employee meet the 30-day eligibility requirement for emergency FMLA leave? The employee must be on the employer's payroll 30 calendar days before the leave begins.

The Q&As also provide detailed guidance on how to calculate hours for part-time employees, overtime, leave amounts and rates of pay calculated and how to coordinate paid sick leave and emergency FMLA leave.

See the chart summarizing the DOL’s Q&As for more detail.

Model paid sick leave poster

The DOL has issued two new posters, one for federal workers and one for all other employees, to help employers fulfill their requirement to notify employees about the employee's rights under the FFCRA. The DOL also issued questions and answers about the posting requirements, including:

• May an employer post the required notice electronically? Yes. Recognizing that many employees are telecommuting, the DOL permits employers to email or direct mail the notice or post the notice to the employer's internal or external website.
• Must employers must post the notice in multiple languages? No, although the DOL is working on translating the notice.
• Must employers provide notice of this law to recently laid-off individuals or prospective job applicants? No. Notice must only be sent to current employees, including any new hires.
• Is an employer required to provide notice if the state provides for greater paid sick leave benefits? Yes.
• Is a small employer required to provide the notice? Yes.

The Q&As answers a number of other questions, including how to provide notice at various worksites and what to do if the employer is running out of wall space (make room for the notice).

Limited enforcement amnesty

The DOL issued a Field Service Bulletin that provides limited amnesty for employers who fail to comply with the FFCRA. Under this guidance, the DOL will not bring an enforcement act against a public or private employer for violations of the FFCRA occurring through April 17, 2020, as long as the employer has acted reasonably and in good faith to comply with the FFCRA. To show reasonable and good faith action, the employer must:

• Remedy any FFCRA violations, including making employees whole as soon as possible;
• Not engage in willful violations (where the employer either knew or showed reckless disregard for the prohibited matter); and
• Commit to the DOL in writing to comply with the FFCRA in the future.

If these steps are not taken, the DOL reserves the right to exercise its full enforcement authority. After April 17, 2020, this amnesty will not be available and the DOL will fully enforce FFCRA violations, as appropriate and consistent with the law.

These are unprecedented and challenging times for employers, but Norton Rose Fulbright lawyers are continuing to monitor breaking developments as they occur. For regular updates, see our dedicated COVID-19 (coronavirus) page on nortonrosefulbright.com.