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Since our last communication regarding the Families First Coronavirus Response Act (“FFCRA”) and its constituent Acts, the Emergency Paid Sick Leave Act and Emergency Family and Medical Leave Act, there have been a number of developments which have either modified the terms of the FFCRA or provided clarification as to its implementation. Below is a summary of such new developments.
As of this writing (5:00 PM on 3/30/20) the Department of Labor has not issued final regulations addressing the implementation of the Emergency Paid Sick Leave and Emergency Family and Medical Leave Acts. However, the DoL has posted substantial guidance on these Acts, including answers to common questions. They have also posted posters which all employers are required to post where they normally post employee notices. Links to these various DoL resources can be found here: https://www.dol.gov/agencies/whd/pandemic.
Arizona has joined the growing number of states that have issued “stay-at-home” orders, instructing all non-essential services and businesses to either limit or outright suspend on-site operations. Questions have arisen how this order affects the obligations to pay leave under the new Acts. The Department of Labor has answered this question here (see questions 23-27): https://www.dol.gov/agencies/whd/pandemic/ffcra-questions. In short, if an Arizona business is forced to close because of Arizona’s “stay-at-home” order, such a business is not required to provide paid leave under either the Emergency Paid Sick Leave Act or Emergency Family and Medical Leave Act.
We have received a number of questions concerning the possible exemption for providing child-care related paid sick leave and expanded family and medical leave for business with fewer than 50 employees. As a reminder, this exempts employers from providing paid leave under reason 5 of the Emergency Paid Sick Leave Act (leave to care for a child who is out of school or childcare because of COVID-19) and paid leave under all of the Emergency Family and Medical Leave Act would jeopardize the viability of the business as a going concern. A business hoping to take advantage of this exemption will need to qualify for such exemption based on regulations to be issued by the Department of Labor. As of 5:00 PM on 3/30/2020, the Department of Labor has not issued regulations addressing how a business may elect/qualify for this exemption, but it has indicated that it will issue regulations with specific criteria to elect/qualify for this exemption.
The Department of Labor has provided guidance to its Wage and Hour Division field staff throughout the country stating that until April 17, 2020, enforcement actions should not be brought against employers for violations of the FFCRA if certain conditions are met. An enforcement action will not be brought against an employer who has violated the FFCRA if the employer has acted “reasonably” and “in good faith” and all the following are true:
After April 17, 2020, the Department of Labor will be authorized to fully enforce violations of the FFCRA. Full text of the Department of Labor’s temporary non-enforcement policy can be found here: https://www.dol.gov/agencies/whd/field-assistance-bulletins/2020-1
AWD LAW is here to answer your questions. This summary is intended to serve as general information for interested persons, but it is not legal advice for any specific situation. AWD LAW attorneys Kate Mahady (KMahady@awdlaw.com) and John Carlson (JCarlson@awdlaw.com) are available to answer fact-specific questions for our clients. Our number is (928) 774-1478.