Employers Who Inadvertently Violated the FFCRA Have a Short Reprieve

With the Families First Coronavirus Response Act (“the Act”) a reality, covered employers should remember and take refuge in the DOL’s March 24, 2020, announcement that it will not bring legal action against employers that have violated the Act until April 17, provided that the non-compliant employer can demonstrate: (i) it made reasonable good faith efforts to comply; (ii) the violation was unintentional; and (iii) it quickly rectified the error and committed to not violating the Act again.

As we have reported in our Coronavirus Resource Center, the Act, which President Trump signed on March 18, 2020, requires businesses with fewer than 500 employees to provide up to 80 hours of emergency short- and long-term leave to employees who are unable to work for reasons related to COVID-19. Similarly, the Act provides up to 80 hours of leave at two-thirds pay for employees who need to care for a family member impacted by the virus, with 10 or more weeks off at two-thirds pay to employees who cannot work because they need to care for a child, whose school and/or daycare has closed. (Link to previous article summarizing key provisions of the FFCRA).

Early indications are that employers are concerned about inadvertently having made errors in correctly calculating the 500-employee threshold under the Act’s “integrated employer” test, correctly calculating an employee’s regular rate of pay, and/or correctly calculating the overtime hours that must be included for an employee who would have been regularly scheduled to work overtime (but did not actually work), and other interpretations of the Act’s requirements. Employers should not panic about becoming experts on all facets of the Act. Instead, given the short grace period extended by the DOL (less than two weeks remain), employers should use the extended period of time prudently to seek legal guidance to ensure compliance with the Act, and on how best to rectify any errors made during periods of non-compliance.

However, employers must also realize that while the Department of Labor may be giving them a short term “pass” on enforcement, there is nothing in the law or regulations that would prevent the plaintiff’s bar from filing private law suits against an employer who is not in compliance.

For further information, please see our Updated FAQs related to the FFCRA based on Department of Labor Regulations.