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Updated Guidance on Notice Requirements and Furloughed Employees under the Families First Coronavirus Relief Act

The following guidance is being provided by OlenderFeldman LLP with respect to notice requirements under the Families First Coronavirus Response Act (“FFCRA”) and FFCRA application to furloughed employees, with official updated guidance provided by the U.S. Department of Labor (“DOL”). See https://www.dol.gov/agencies/whd/pandemic/ffcra-questions. This information is subject to change based upon revised guidance that may follow from the DOL and all clients should refer to the DOL’s website for updated information.

Notice Requirements for All Covered Employers under FFCRA

Today, April 1, 2020, is the deadline for all covered employers to post the DOL notice of FFCRA requirements in a “conspicuous place on its premises.” Those employers with employees teleworking can satisfy the notice requirement by e-mailing or direct mailing the notices to employees or publishing the notices on the company website. The required notice poster pursuant to the FFCRA is attached for your use and publication.

Furloughed Employees Are NOT Entitled to FFCRA Leave

Many of our clients are currently weighing the important issue of how to handle their workforce staffing levels at the moment, which involve a variety of considerations ranging from across-the-board salary reductions to furloughs and layoffs. Unlike layoffs, which involve termination of employment, furloughs are a company-initiated short-term leave of absence, where the affected individuals remain employees of the company.  Depending upon the health care provider, furloughed workers may receive health care benefits while on their unpaid leave of absence. They can also receive unemployment insurance benefits while on furlough. While carrying healthcare costs for workers who are not performing work for the company may seem like an unnecessary cost for businesses struggling to stay afloat, the practical purpose behind furlough is to provide a level of comfort to employees that they will be brought back to work once the COVID-19 pandemic subsides while having health care support. Furloughs have the added advantage that when business improves, employers will not need to recruit, train and onboard new employees because the furloughed workers can pick up where they left off with little ramp up time.

Many clients have been concerned (and factored into their decision making) that furloughed employees would still be entitled to paid leave under the FFCRA, whether caring for themselves, family members or children whose day care centers or schools closed as a result of the COVID-19 pandemic. The DOL has provided reliable guidance that furloughed workers will not be entitled to paid leave if an employer closes a worksite or furloughs employees due to a lack of work or government closure directives, regardless of whether that happens on or after April 1, 2020.  Additionally, the DOL clarified that employees of businesses that close on or after April 1, 2020 are not entitled to paid sick leave or extended family medical leave, even if the employee requested leave prior to business closure.

If you require additional assistance on staffing issues during the novel conditions created by COVID-19, please contact the firm’s Employment Practices Group via email or through the firm website.