New DOL Guidance Includes Amnesty For Virus Law Violators

Law360 (March 26, 2020, 5:42 PM EDT) -- The U.S. Department of Labor spotlighted a new batch of guidance on the new emergency sick leave law Thursday, including an enforcement memo that laid out criteria for granting amnesty to businesses that wrongly deny workers time off in the first weeks after the statute takes effect.

The U.S. Department of Labor announced new guidance Thursday on the Families First Coronavirus Response Act. (AP)

In a memo to field staff, the DOL said it will not sue employers that violate the Families First Coronavirus Response Act until April 17 if they can show they have made “reasonable, good faith efforts to comply with the act,” as long as the violation was not intentional, and the employer quickly makes things right and pledges not to break the law again.

The memo is dated March 24, but the agency shared it Thursday alongside other guidance, including employee rights notices for federal and private employers to print and post in their workplaces and a Q&A document explaining employers’ posting obligations.

“The Wage and Hour Division continues to prioritize providing this vital information to workers and employers so that both are fully prepared to maximize the benefits available to them as quickly as possible when this law goes into effect on April 1, 2020,” DOL Wage and Hour Division Administrator Cheryl Stanton said in a statement Thursday. The agency issued prior guidance on the law on March 24.

The act, which the president signed into law on March 18, makes businesses with fewer than 500 workers provide emergency short- and long-term leave. The law takes effect April 1 and will expire on Dec. 31.

The law provides two weeks of time off at full pay to workers who can't work for various reasons related to the virus, including if they've been quarantined or have COVID-19 symptoms and are seeking a diagnosis. The law applies to part- and full-time workers, providing them as many hours off as they generally work in two weeks, up to 80 hours.

It also provides up to 80 hours at two-thirds pay for workers who need to care for a family member affected by the virus, and as many as 10 more weeks off at two-thirds pay to those who can't work because they need to care for a child whose school or care provider has closed.

Thursday’s guidance includes notices employers must post laying out the various triggers for paid sick and leave time, the amount of time workers can take off and the amount they’ll be paid while off work. In a Q&A on the postings, the agency explained that employers must post the notices “in a conspicuous place” or directly mail or email them to workers. Employers are not obligated to share the notice with laid-off workers or new applicants, but it must do so for new hires, the agency said. If the employer’s workplace spans multiple buildings, it must post the notice in each, the DOL added.

The guidance also lays out a 30-day nonenforcement policy for employers that unwittingly break the law. The agency said it will not take action if employers make “all affected employees whole as soon as practicable,” the violation was not “willful,” and the employer makes “a written commitment … to comply with the act in the future.” This policy is effective from the law’s March 18 signing until April 17, the agency said.

--Editing by John Campbell.

For a reprint of this article, please contact reprints@law360.com.

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