DOL – Legislative Update: Mandatory Employee Poster

As Anticipated, various federal agencies have begun to issue rules based on the two major laws recently signed by the President.

The Department of Labor (DOL) in support of the Families First Coronavirus Response Act (FFCRA) has directed that you must provide your employees access to a new mandatory employee rights poster. Access is considered achieved when sent electronically to all employees and, when you can go to your office, posted in a conspicuous location in your office, most likely a break room bulletin board.

This is a critical first step in the overall enforcement of the FFCRA.

The DOL will not bring enforcement action against employers for violations of the FFCRA prior to April 17, 2020 (provided you have made a reasonable and good faith effort to comply with the Act).

However, be prudent, we advise you to electronically distribute the poster today and to carefully read through the entire Question and Answers document, so you have an understanding of how the leaves work. The following are some highlights from the updated guidance:

  • These leaves are not available to employees with reduced hours, furloughed employees, or employees’ whose workplaces are closed. See questions 23-28.
  • These leaves are not available to employees whose workplaces are closed due to a federal, state, or local shelter-in-place or stay-at-home orders, or due to business slowdowns. See questions 23 and 27.
  • These leaves (and payroll tax credit) are not retroactive. Employees are not entitled to pay under these leaves if they were absent or out of work (for any reasons) prior to April 1. See question 13.
  • Both emergency paid sick leave (EPSL) and emergency Family and Medical Leave (EFMLA) can be taken on an intermittent basis in certain situations. See Questions 20-22 for explanations about when intermittent leave is allowed.
  • Employees may not be required to use other forms of paid leave prior to or concurrently with EPSL or EFMLA. See questions 32 and 33.
  • Employers should keep documentation to show that employees who received leave were actually in need of leave. The documentation requirements will be outlined in soon-to-be-released IRS guidance. See Questions 15 and 16.

Our HR Consultant, at Exemplar360, also notes that the separate Coronavirus Aid, Relief and Economic Security Act (CARES) expands unemployment benefits by 13 weeks and adds $600 to the weekly amount an individual would usually receive. While these unemployment benefits are generous, employers should still consider their options and incentives under the CARES Act mentioned before making decisions about reduced hours, furloughs, or layoffs.

Employees who experience reduced hours, furloughs, or layoffs should be encouraged to file for unemployment insurance as soon as possible. We recommend that both employers and employees visit their state’s unemployment insurance department website and track local and state news, as departments across the country are updating their rules to facilitate displaced workers during this time.