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March 27, 2020

COVID-19: USDOL Issues Updated Guidance on Compliance With Families First Coronavirus Response Act

Updated Families First Coronavirus Response Act Q&As

Yesterday, the US Department of Labor (USDOL) issued updated guidance for employers regarding compliance with the Families First Coronavirus Response Act (FFCRA) by adding 23 new Q&As to the initial 14 Q&As the USDOL posted on Tuesday.

This additional guidance provides answers to many of the questions that have been left open since the FFCRA was enacted on March 18 and since the USDOL issued its first set of Q&As on Tuesday, including:

  • Required documentation for leave under the FFCRA
  • The meaning of “unable to work (or telework)”
  • The use of intermittent leave
  • The effect of worksite closures
  • The effect of furloughs on employees not on FFCRA leave
  • Continuing health insurance coverage during FFCRA leave
  • Possibility of supplementing FFCRA paid leave with employer-paid time off (with employer approval and employee choice)
  • Confirmation that amounts paid to employees in excess of amounts required by FFCRA paid leave are not eligible for payroll tax credit
  • Additional information for employers that are part of multi-employer collective bargaining agreements

Model Notice Q&A

Yesterday, the USDOL also issued a Q&A document addressing the notice that employers are required to post regarding the FFCRA.

The document states that employers must post a notice of the FFCRA’s requirements in a conspicuous place on its premises. The employer may satisfy the posting requirement by emailing or direct mailing the notice to employees or posting it to an employee-accessible website. As noted in our legal alert yesterday, a copy of the notice can be found here.

Employers are not required to post the notice in multiple languages, but the USDOL is in the process of translating the notice into other languages. Employers must only share the notice with current employees and are not required to share the notice with recently laid-off individuals or new job applicants prior to hire.

In situations where employers maintain several different buildings, the employer must post the notice in each building in which employees directly report to work.

The FFCRA will become effective on April 1.

Field Bulletin

Yesterday, the USDOL also posted Field Assistance Bulletin No. 2020-1, which was provided to Wage & Hour Division staff on Tuesday and addresses FFCRA enforcement.

The bulletin indicates the USDOL will temporarily not enforce the FFCRA for the period of March 18 through April 17 as long as the employer has made reasonable, good-faith efforts to comply with the act. To satisfy the good-faith requirement, the employer must remedy any potential violations as soon as possible, the employer must not have willfully violated the act, and the USDOL must receive a written commitment from the employer to comply with the act in the future.

If you have any questions regarding the content of this alert, please contact Buster Melvin, partner, at emelvin@barclaydamon.com; Ben Wilkinson, counsel, at bwilkinson@barclaydamon.com; or another member of the firm’s Labor & Employment Practice Area.

We have a specific team of Barclay Damon attorneys who are actively working on assessing regulatory, legislative, and other governmental updates related to COVID-19 and who are prepared to assist clients. If you have any questions, please contact Yvonne Hennessey, COVID-19 Team leader, at yhennessey@barclaydamon.com or any member of the COVID-19 Team at COVID-19ResponseTeam@barclaydamon.com.

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