The DOL Updates Its Model Notice of Employee Rights Under the Families First Coronavirus Response Act

By Joshua R. Woodard, Swen Prior and Jennifer R. Yee

The United States Department of Labor (“DOL”) updated its “model” notice of employees’ rights pursuant to the Families First Coronavirus Response Act (“FFCRA” or “Act”). This updated model notice must be posted or distributed to employees electronically in time for the FFCRA’s effective date of April 1, 2020. 

ACT SUMMARY

The DOL’s notice provides a summary of employees’ rights under the Act including the right to receive up to 80 hours of paid sick leave for six enumerated reasons and expanded FMLA rights related to the fifth of those enumerated reasons, which are all related to the COVID-19 crisis. 

The FFCRA requires employers with fewer than 500 employees to provide employees with paid sick leave for up to 80 hours:

• At the employees’ regular rate of pay (capped at $511/day) if the employee is unable to work or telework because the employee (1) is subject to a federal, state, or local quarantine order relating to COVID-19; (2) has been advised by a healthcare provider to self-quarantine related to COVID-19, or (3) is experiencing COVID-19 symptoms and is seeking a medical diagnosis; or
• At two-thirds of the employees’ regular rate of pay (capped at $200/day) if the employee is unable to work or telework because the employee (4) is caring for an individual subject to subject to a federal, state, or local quarantine order relating to COVID-19; (5) is caring for his or her child whose school or place of care is closed (or child care provider is unavailable) due to COVID-19 related reasons; or (6) is experiencing any other substantially-similar condition specified by the U.S. Department of Health and Human Services.

The FFCRA also requires employees with fewer than 500 employees to provide employees with 10 additional weeks (when combined with the 80 hours noted above, a total of 12 weeks) of paid leave at two-thirds of the employees’ regular rate of pay (capped at $200/day) if the employee is unable to work or telework because the employee is caring for his or her child whose school or place of care is closed (or child care provider is unavailable) due to COVID-19 related reasons.

Notably, the FFCRA’s 80 hours of paid sick leave are available for employees who are unable to work or telework if they are unable to care for their children whose schools or places of care are closed due to COVID-19 related reasons.  In other words, the two provisions of the law – the paid sick leave and expanded FMLA — work together to provide paid leave coverage for the same qualifying reason, which was not recognized in the DOL’s original notice. To the extent employers posted and/or distributed the DOL’s original notice, they will want to reissue the updated notice. 

POSTING REQUIREMENTS

Employers are required to post the notice in a conspicuous place on the employer’s premises. 

Employers should exercise caution to post and/or distribute the DOL’s updated notice and not its original notice. 

Employers may also satisfy this requirement by emailing or mailing this notice to employees, or posting this notice on electronic sites accessible to employees. Employers should consider keeping detailed records of the method(s) used to communicate the DOL’s updated notice to employees.  And, employers may also want to consider documenting any discussions clearing up any confusion that may have resulted from the DOL’s original notice. 

When navigating the details regarding new paid leave under the FFCRA, employers may want to seek experienced employment counsel.