Families First Coronavirus Response Act (“FFCRA”) Model Notice, New Effective Date and Amnesty

03/27/2020

The U.S. Department of Labor (“DOL”) has published the model notice which employers must post as required by the Families First Coronavirus Response Act (“FFCRA”). The notice must be posted in conspicuous places on the premises of the employer where notices to employees are customarily posted. An employer can satisfy this requirement by emailing or direct mailing this notice to employees, or posting this notice on an employee information internal or external website. An employer is not required to post the notice in multiple languages, but the DOL will be publishing the notice in the near future in several additional languages. The requirements in the notice apply only to current employees. Employers can order notices free of charge from the DOL’s Wage and Hour Division, or download and print the notice here.

Most importantly, the DOL has decided that the effective date of the FFCRA is April 1, 2020, not April 2, which, as stated in the FFCRA, is 15 days from the enactment of the Act. Employers must begin complying with FFCRA on April 1, 2020.

Also, in a memo to field staff that was shared with the public on Thursday, the DOL stated that it will not bring enforcement actions against any public or private employer for violations of the FFCRA occurring within 30 days of the enactment of the FFCRA ( meaning April 17, 2020), provided the employer has made reasonable, good faith efforts to comply with the FFCRA. The Field Assistance Bulletin states that an employer who is found to have violated the FFCRA acts “reasonably” and in “good faith” when all of the following facts are present:

  • The employer remedies any violations, including by making all affected employees whole as soon as practicable.

  • The violations were not “willful” (the employer “either knew or showed reckless disregard for the matter of whether its conduct was prohibited”)

  • The DOL receives a written commitment from the employer to comply with the Act in the future.

The Field Assistance Bulletin also explains that for purposes of the non-enforcement policy, employers who are eligible for tax credits but who have insufficient cash flow should make payment of sick leave or family leave wages as soon as possible, but no later than 7 calendar days after the employer has withdrawn an amount equal to the required paid sick leave and expanded family and medical leave wages from the employer’s federal payroll tax deposit its, or, to the extent such deposits are not sufficient, has received a refund of the credit amount from the IRS to cover the required wages.

The Employment, Labor and Benefits team at Larkin Hoffman is available to help. Please reach out for additional guidance.