Rees Broome, PC
Susan Richards Salen, Esq.
(703) 790-6240
ssalen@reesbroome.com
The United States Department of Labor has just published its first guidance for employers and employees on the Families First Coronavirus Response Act. Our guidance issued on March 23, 2020 will be updated in accordance with the DOL Guidance.
The model notice has not yet been issued. However, the DOL Guidance clarifies that the paid leave portion of the Act does not stack for childcare leave – it runs concurrently. In a situation where an employee cannot work due to the unavailability of school or childcare due to COVID-19, all employees (of covered employers) are entitled to two weeks of paid leave (at the employee’s regular rate of pay) for this purpose. After the expiration of these two weeks (or 10 days), any employee who has worked for 30 days for the employer and is unable to work, is entitled to receive an additional 10 weeks of paid leave (2/3rds pay subject to caps/limitations) to take care of a son or daughter. See below from the Guidance:
Employer must offer:
- Two weeks (up to 80 hours) of expanded family and medical leave at the employee’s regular rate of pay where the employee is unable to work because the employee is quarantined (pursuant to Federal, State, or local government order or advice of a health care provider), and/or experiencing COVID-19 symptoms and seeking a medical diagnosis; or
- Two weeks (up to 80 hours) of expanded family and medical leave at two-thirds the employee’s regular rate of pay because the employee is unable to work because of a bona fide need to care for an individual subject to quarantine (pursuant to Federal, State, or local government order or advice of a health care provider), or care for a child (under 18 years of age) whose school or child care provider is closed or unavailable for reasons related to COVID-19, and/or the employee is experiencing a substantially similar condition as specified by the Secretary of Health and Human Services, in consultation with the Secretaries of the Treasury and Labor.
- Up to an additional 10 weeks of expanded family and medical leave at two-thirds the employee’s regular rate of pay [after the expiration of the leave above] where an employee is unable to work due to a bona fide need for leave to care for a child whose school or child care provider is closed or unavailable for reasons related to COVID-19.
The DOL has also provided information concerning anti-retaliation and penalties for violation of the Act. Importantly, the DOL has indicated that it will give employers a period of 30 days after the Act takes effect before it begins to enforce the provisions. However, the employer must have acted reasonably and in good faith to comply and the employee has been made whole as soon as practicable.
Prohibitions: Employers may not discharge, discipline, or otherwise discriminate against any employee who takes expanded family and medical leave under the FFCRA and files a complaint or institutes a proceeding under or related to the FFCRA.
Penalties and Enforcement: Employers in violation of the first two weeks’ expanded family and medical leave or unlawful termination provisions of the FFCRA will be subject to the penalties and enforcement described in Sections 16 and 17 of the Fair Labor Standards Act. 29 U.S.C. 216; 217. Employers in violation of the provisions providing for up to an additional 10 weeks of expanded family and medical leave to care for a child whose school or place of care is closed (or child care provider is unavailable) are subject to the enforcement provisions of the Family and Medical Leave Act. The Department will observe a temporary period of non-enforcement for the first 30 days after the Act takes effect, so long as the employer has acted reasonably and in good faith to comply with the Act. For purposes of this non-enforcement position, “good faith” exists when violations are remedied and the employee is made whole as soon as practicable by the employer, the violations were not willful, and the Department receives a written commitment from the employer to comply with the Act in the future.
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