DEADLINE FOR EMPLOYER COMPLIANCE WITH FFCRA IN 5 DAYS – WHAT BUSINESSES MUST DO TO BE READY 

On March 18, 2020, the President signed the Families First Coronavirus Response Act (the “FFCRA”) into law. The FFCRA requires employers to provide employees with paid sick or family leave if they are unable to report to work for specified reasons related to COVID-19. There are two parts to the FFCRA – an expansion of the Family Medical Leave Act (FMLA) and a new Federal Emergency Paid Sick Leave. Both are effective starting April 1, 2020. Please see our Update No. 2 for detailed information regarding the FFCRA. 

This update is intended to be a summary of what businesses should start doing in order to begin compliance by the Act’s effective date.

GET READY: TO DO LIST BEFORE THE FFCRA EFFECTIVE DATE

Prior to the FFCRA’s effective date of April 1, 2020, employers of ALL SIZES need to prepare their compliance “to do” list.

We’ve done some of the work to get you started:

Businesses with 50 or more employees

  • On or before April 1, 2020, large employers (with 50 or more employees) who still have workers on the books need to start notifying employees by sending out the DOL’s model notice. A link to the DOL’s FAQ is also helpful to provide to employees. [See Update No.4  for more detailed information]
  • Non-enforcement period – Although there is a grace period (March 18, 2020 to April 17, 2020) before enforcement starts, start prepping your HR department to handle employee inquiries relating to the new laws.
    • During the grace period, employers must have acted reasonably and in good faith to comply with the Act. This means that violations are remedied and the employee is made whole as soon as practicable by the employer, the violations were not willful, and the employer provides the DOL with a written commitment to comply with the Act in the future.
  • REMINDER TO FOLLOW ANY APPLICABLE LOCAL PUBLIC HEALTH ORDERS– The employer must continue to track and remain compliant with any applicable local public health orders.
    • For example, in San Diego, amended public health orders state that employers must not require a doctor’s note from employees requesting sick leave. This continues to apply to requests for leave under the FFCRA.
  • Penalties for non-compliance (for example: not paying employees who take the sick leave) will be considered a failure to pay minimum wage. Such failures will expose employers to penalties under the FLSA.

Businesses with less than 50 employees

  • Smaller employers (with less than 50 employees) are required to maintain compliance with the FFCRA unless they have an exemption.
  • Start thinking about whether your business will be seeking an exemption. More information regarding the exemption process should be released by the government in the next week.
  • Even employers seeking an exemption should start notifying employees on or before April 1, 2020 by sending out the DOL’s model notice. A link to the DOL’s FAQ is also helpful to provide to employees. [See Update No.4  for more detailed information]
  • Non-enforcement period– Although there is a grace period (March 18, 2020 to April 17, 2020) before enforcement starts, start prepping your HR department to handle employee inquiries relating to the new laws, regardless of whether you are seeking an exemption.
    • During the grace period, employers must have acted reasonably and in good faith to comply with the Act. This means that violations are remedied and the employee is made whole as soon as practicable by the employer, the violations were not willful, and the employer provides the DOL with a written commitment to comply with the Act in the future.
  • REMINDER TO FOLLOW ANY APPLICABLE LOCAL PUBLIC HEALTH ORDERS – The employer must continue to track and remain compliant with any applicable local public health orders.
    • For example, in San Diego, amended public health orders state that employers must not require a doctor’s note from employees requesting sick leave. This continues to apply to requests for leave under the FFCRA.
  • Penalties for non-compliance (for example: not paying employees who take the sick leave) will be considered a failure to pay minimum wage. Such failures will expose employers to penalties under the FLSA.

We can assist you with further planning and questions, including with drafting an e-mail to notify your employees regarding eligibility under the FFCRA, please call us!

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