As a reminder, the Families First Coronavirus Response Act (the “FFCRA”) became effective April 2, 2020. Accordingly, private employers with fewer than 500 employees must currently be complying with the FFCRA, and providing Emergency Paid Sick Leave and Emergency Family Medical Leave Act (“FMLA”) Leave to qualified employees, absent the small business or health care provider exemptions previously discussed in Koley Jessen News Flashes.

After the FFCRA was passed, the U.S. Department of Labor (“DOL”) published enforcement guidance stating that there would be a period of non-enforcement until April 16, 2020. Given that this date has come and gone, the DOL is now fully enforcing violations of the FFCRA, as appropriate and consistent with the law.

In addition to the foregoing, we would like to remind all FFCRA covered employers that they must post the notice of rights issued by the DOL. The notice can be found here. In the event an employer’s premises remains closed at this time, posting the notice to an internal company intranet or otherwise circulating the notice via email or similar means is sufficient. It is critical to understand that even if a health care provider employer or small business with fewer than 50 employees has elected to exempt employees from the application of the Emergency Paid Sick Leave and/or Emergency FMLA Leave, the law still requires such employers to display this poster.

Covered employers must also keep in mind the recordkeeping requirements imposed by the FFCRA. Under the FFCRA, covered employers must retain all documentation provided by an employee seeking Emergency Paid Sick Leave or Emergency FMLA Leave for four years. This recordkeeping requirement applies regardless of whether the leave was granted or denied. Furthermore, in the event the employee’s request for leave is denied, an authorized officer of the employer must document such determination and similarly keep it for four years.

Covered employers who fail to comply with the FFCRA expose themselves to liability under the Fair Labor Standards Act (“FLSA”). An employer who does not provide Emergency Paid Sick Leave to covered employees as required is considered to have failed to pay minimum wages in violation of the FLSA. Such an employer would be liable to the employee in the amount of their unpaid wages and in an additional equal amount as liquidated damages. Furthermore, if it was determined that an employer willingly violated the Emergency Paid Sick Leave provisions, the punishment is even more serious, leaving the employer subject to a fine of up to $10,000 and imprisonment of up to six months. If a covered employer violates the Emergency FMLA Leave requirements by interfering with, restraining, or denying the exercise of the attempt to take Emergency FMLA Leave, the employer would be subject to the usual FMLA enforcement and penalty provisions.

Although unrelated, we also wanted to remind employers of the new Form I-9 requirements. A new Form I-9, with a revision date of 10/21/2019, must be used starting May 1, 2020. The updated form contains minor changes to the online fillable form, such as revising the Country of Issuance field in Section 1 and the Issuing Authority field in Section 2. The instructions are also updated to, among other things, clarify who can act as an authorized representative on behalf of an employer and provide clarifications on acceptable documents. A revised M-274, Handbook for Employers: Guidance for Completing Form I-9, also has been released with expanded information on properly completing Form I-9.

Koley Jessen continues to monitor the legal developments occurring alongside the progression of COVID-19. We encourage you to contact a member of the Employment, Labor, and Benefits practice group with any questions regarding the foregoing.

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