DOL Provides Temporary Employer Amnesty Under the FFCRA

As previously reported by Stevens & Lee, the Families First Coronavirus Response Act (FFCRA), which was signed into law on March 18, 2020, requires most employers to provide paid family and medical leave and paid sick leave to employees affected by the COVID-19 pandemic beginning April 1, 2020. Meanwhile, the U.S. Department of Labor (DOL), has issued guidance including fact sheets, question and answer pages, and posters, in an attempt to settle key uncertainties regarding employee rights and employer obligations under the FFCRA.

But all legislation has gaps and ambiguities, and it simply is not possible for the DOL to weigh in on all major “gray areas” raised by the FFCRA in the 14 days between the law’s enactment and the effective date of its paid leave provisions. In seeming recognition of this fact, the DOL has published a brief memorandum advising that the Department will not bring enforcement actions against any employer for “reasonable” and “good faith” violations of the FFCRA occurring up to and including April 17, 2020.

Employers should be mindful that the Department has set a three-part benchmark for what qualifies as “reasonable” and “in good faith.” Specifically, the DOL will spare employers during this period of amnesty when all of the following facts are present:

  1. The employer remedies any violations and makes all affected employees “whole” as soon as practicable.
  2. The violations were not “willful,” as in the employer either “knew” or “showed reckless disregard” toward the fact that its conduct was prohibited.
  3. The employer provides the DOL a written commitment to comply with the FFCRA in the future.

If the employer does not satisfy this criteria or fails to remedy the violation upon notification by the DOL, the Department reserves the right to “exercise its enforcement authority.”

Notwithstanding the DOL’s seeming inclination toward mercy, the Department has still created a highly fact-intensive inquiry; even if an employer makes a concerted effort to abide by the letter of the law, there is no guarantee that the DOL will agree. Even if an initial misunderstanding between the employer and the Department is smoothed over before enforcement proceedings begin, “pre-litigation” disputes with a governmental agency still take considerable amounts of time, money and energy under the best of circumstances. Fending off legal action in the midst of a global pandemic likely to get worse before it becomes better does not make this process easier.

Suffice to say, even with this initial amnesty period in place, employers should consider obtaining legal advice and counseling from experienced labor and employment counsel now to diminish the odds of becoming entangled with the DOL later.  The best offense remains a good defense.

Stay tuned to Stevens & Lee’s Alerts and Newsletters for further updates as coronavirus-related developments impacting employee rights and employer obligations continue to develop under the Families First Coronavirus Response Act and other federal, state and local laws. In the meantime, if you have any questions about how this, or any other, labor and employment law development may affect your business, please contact Daniel J. Sobol, Alexander V. Batoff or the Stevens & Lee attorney with whom you regularly work.

This News Alert has been prepared for informational purposes only and should not be construed as, and does not constitute, legal advice on any specific matter. For more information, please see the disclaimer.