Employment Law Alert re: COVID-19 - Update

This brief alert follows up on our prior alert regarding the Families First Coronavirus Response Act.  We noted in our prior alert that the U.S. Department of Labor would be releasing a poster regarding employee rights under the Act, and it since has done so.  You can find a copy of the poster for private employers here: https://www.dol.gov/sites/dolgov/files/WHD/posters/FFCRA_Poster_WH1422_Non-Federal.pdf.

Please note that the posting mandatory.  The poster must be put up in a conspicuous place on the employer’s premises, although the posting requirement also may be satisfied by (among other things) emailing or direct mailing the poster to employees.  We recommend posting the poster on premises (presuming that the employer’s premises are open at this time) and emailing a copy to employees who are working remotely or who are furloughed or otherwise not working at all.  The poster does not need to be provided to employees who have been laid off or whose employment otherwise has been terminated.  Please note in that regard that a furlough and a layoff are not the same thing – we have seen quite a bit of confusion over that point in the past few weeks.

You can find FAQs regarding the posting requirement here: https://www.dol.gov/agencies/whd/pandemic/ffcra-poster-questions.  Employers with large premises that remain open should take particular note of the final two questions and answers.

The U.S. Department of Labor also has released new FAQs on the Act generally, found here: https://www.dol.gov/agencies/whd/pandemic/ffcra-questions.  We have received a number of questions regarding the potential exemption from the emergency family leave requirement (and one particular portion of the emergency paid sick time requirement), for businesses with fewer than 50 employees.  As such, we found FAQ No. 4 to be interesting.  It appears that qualifying for the exemption essentially will be on an “honor system,” subject to regulations that still are forthcoming.  That said, the standard to be met for the exemption, from the text of the Act alone, is very high, and we don’t recommend treating it lightly, particularly given the significant danger of an employee complaint in light of the promotion of the new laws in the media.

Finally, in further follow up to our prior alert, we presume that readers are unavoidably aware of the recent “stay at home” orders put in place in New York and New Jersey.  We are happy to address questions regarding employer operations in light of those orders.