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The Families First Coronavirus Response Act FAQs: The FMLA Amendments and Paid Sick Leave Requirements of the New Law

On March 18, 2020, President Donald Trump signed the Families First Coronavirus Response Act (FFCRA) in response to the spread of the novel coronavirus and the illness it causes, COVID-19. Among other fiscal packages, the act does three things: (1) expands the Family and Medical Leave Act (FMLA) temporarily (until the end of December 2020) to cover leave needed for the care of children out of school because of COVID-19 and also makes weeks 3 through 12 of its effective period paid leave; (2) creates 2 weeks of paid sick leave for childcare and other leave related to the coronavirus; and (3) provides for tax credits related to the paid leave provisions created by the act. The FMLA amendments and the new federal sick leave were created in separate and distinct sections. In many respects, they will operate independently, but they were also clearly meant to align with one another, as they have many commonalities.

Both new laws apply only to certain covered employers (private employers with fewer than 500 employees, governmental agencies, and schools). These employers need to be ready to provide these leaves starting on April 2, 2020. Below are answers to some frequently asked questions about the FMLA amendments and the new paid sick leave law in addition to recommendations as to how they may be interpreted once the FFCRA is effective.

Covered Employers

Question 1. Which employers must comply with the new leave provisions (FMLA and sick leave)?

  • Answer. Both the additional FMLA leave provisions and the new federal sick leave apply to governmental agencies and schools. As for private companies, the new laws apply only to employers affecting interstate commerce with fewer than 500 employees in aggregate. This is a new way of defining a covered employer under the FMLA (traditionally, it requires an employer to have 50 or more employees over 20 or more calendar weeks in one year), The federal sick leave requirement is entirely new. Yet, neither provision of the act defines when to measure the employee headcount. Given the short duration of the amendments (which are effective from April 2, 2020, until December 31, 2020) employers may want to assume the FFCRA will be triggered if, at the time of notice of the need for leave they have fewer than 500 employees.

Q2. What if I believe my business does not affect interstate commerce?

  • A2. Congress has the power to pass the FFCRA pursuant to the commerce clause of the constitution. That means its reach to specific employers requires that employers be operating in interstate commerce. Therefore, the definition of employer includes only those operating in interstate commerce. Of note, governmental agencies are assumed to affect interstate commerce.

Q3. Do employees not working in the United States count toward an employer’s total?

  • A3. Traditionally, under the FMLA, employees working in other countries do not count toward an employer’s total. The sick leave law borrows heavily from the Fair Labor Standards Act (FLSA) for its definition of both “employer” and “employee.” Absent guidance, the best rule of thumb is—if the FLSA applies to the employees, count them.

Q4. What about temporary employees?

  • A4. Traditionally, under the FMLA, temporary employees do count toward an employer’s total. The same would likely be true under the new sick leave law.

Q5. What if a subsidiary has fewer than 500 employees, but when its employee count is aggregated with that of the parent company, the total exceeds 500 employees?

  • A5. There is no clear answer to this question. The FMLA regulations recognize the “integrated employer test,” which was included in the FMLA to aggregate employee counts (for determining employer coverage and employee eligibility). Of note, generally the integrated employer test works to the employer’s disadvantage, but here, aggregating would actually work to exempt many employers. Because the FMLA portion of the FFCRA works to amend the FMLA, and the integrated employer test is a readily recognized concept in the FMLA, the integrated employer test likely will apply. Watch carefully for any guidance the U.S. Department of Labor issues on this topic. Note that if a parent company and the smaller subsidiaries are considered integrated employers under the standard regulatory criteria, it is likely the smaller subsidiary is exempt from the expanded FMLA. Under the FMLA, the integrated employer test looks at four factors:

     

    1. Whether the companies operate under common management

    2. The amount of interrelation between operations

    3. The amount of centralized control of labor operations

    4. The degree of common ownership and financial control

    For the new sick leave law, the U.S. Department of Labor (DOL) will enjoy much more discretion on whether it adopts the integrated employer test. The new sick leave law, again, borrows heavily from the FLSA. Some courts have recognized the integrated employer test under the FLSA, but the test may be different.

FMLA Leave

Q6. What type of emergency FMLA leave is provided?

  • A6. The FFCRA provides for an amendment to the FLMA to grant emergency FMLA (E-FMLA) leave to care for a minor child when the need is related to a public health emergency (PHE). The following must be satisfied in order for the employee to qualify for E-FMLA leave:

     

    1. The leave must be taken between April 2, 2020, and December 31, 2020. (Leave provided prior to April 2, 2020, will not count as FMLA leave.)

    2. The employee must be unable to work or telework because of a need to take care for a minor child. There is nothing in the FFCRA to help employers determine when an employee is needed to care for the child. Nothing in the FFCRA appears to grant the employer the right to question whether others are available to care for the child. It remains to be seen whether an employee would be disqualified from taking E-FMLA leave if his or her employer merely offered telework, or if the employee can claim that he or she cannot perform telework even if the employer offered it.

    3. The employee must provide notice of the need for leave as soon as practicable. Failure to do so will cause a delay in when FMLA leave can start.

    4. The need to care for the minor child must be because of a “declared” PHE related to COVID-19 that has caused:

      1. the child’s school (elementary school or secondary school) to be closed;

      2. the child’s place of care to be closed; or

      3. the child’s normal childcare provider (a person paid for providing childcare on a regular basis) to be unavailable.

    The declaration of a PHE can be made by the applicable federal, state, or local authorities.

    Employers may want to keep in mind that the other provisions of the FMLA are still in effect. A normally covered employer (that has greater than 50 employees in 20 or more calendar weeks) with normally defined eligible employees (who have worked for one year, worked for 1,250 hours in the year preceding leave, and worked at a worksite that has 50 or more employees within 75 miles) may need to analyze requests for leave related to COVID-19 under the normal provisions of the FMLA (i.e., an employee’s serious health condition; or an employee’s need to care for a first-degree relative with a serious health condition).

Q7. Who is eligible to take E-FMLA leave?

  • A7. Eligibility for E-FMLA leave is calculated differently than normal FMLA leave. An employee is eligible to take E-FMLA leave if he or she has been “employed” for at least 30 calendar days (this one criterion replaces all other eligibility requirements).

Q8. What qualifies as 30 calendar days?

  • A8. The act uses the word “employed.” The DOL has previously interpreted this to mean days or weeks on the payroll. Absent guidance from the DOL, the best interpretation would be to assume that Congress meant the employee has been on the company payroll for at least 30 calendar days, no matter how many days he or she worked.

     

    The act is silent on how far back an employer is to look to find the 30 days. Arguably, the 30 days would need to be the 30 days before the employee takes FMLA leave.  However, the regulations under the FMLA took the normal eligibility language of “for at least 12 months by the employer with respect to whom leave is requested under Section 102” and interpreted it to mean 12 months within the past seven years. Absent some clarification from the DOL that it has a different interpretation of “at least 30 calendar days,” an employer may want to look back to see whether it employed the employee previously and add that to the 30-day total.  Note too, time worked as a temporary employee for the covered employer would also count towards this already shortened total.

Q9. Are healthcare workers and first responders eligible to take E-FMLA leave?

  • A9. There are two situations in which these particular workers may not be eligible for E-FMLA leave. The FFCRA says that the DOL can “issue regulations for good cause . . . to exclude certain health care providers and emergency responders.”

     

    In Section 3105, it states, “An employer of an employee who is a health care provider or an emergency responder may elect to exclude such employee from the application of the provisions in the amendments made [in] this Act.” Thus, employers may need to think through the definitions of “health care provider” and “emergency responder.”

Q10. Who is a healthcare provider?

  • A10. The FMLA defines the term “health care provider” as “(A) a doctor of medicine or osteopathy who is authorized to practice medicine or surgery (as appropriate) by the State in which the doctor practices; or . . . (B) any other person determined by the Secretary to be capable of providing health care services.” According to the DOL, nurses are not included in this definition. The following are healthcare providers under subsection (B): doctors, podiatrists, dentists, clinical psychologists, optometrists, chiropractors (sometimes), nurse practitioners, nurse-midwives, clinical social workers, physician assistants, and Christian Scientist practitioners.

Q11. Who is an emergency responder?

  • A11. This phrase is novel to the FMLA, and it is undefined by the act. But, the definition has the potential to be much broader than the term “healthcare provider,” and may include healthcare workers that are expected to care for COVID-19 positive patients.

     

    The first place the DOL looks, to fill in gaps in the FMLA, is the Fair Labor Standards Act (FLSA), which does not define “emergency responder.” The FLSA does discuss “first responders” to include “police officers, detectives, deputy sheriffs, state troopers, highway patrol officers, investigators, inspectors,” among others—none of which are very applicable to the current pandemic. However, a U.S. Homeland Security Presidential Directive defines “first responder” as follows:

    The term “first responder” refers to those individuals who in the early stages of an incident are responsible for the protection and preservation of life, property, evidence, and the environment, including emergency response providers as defined in section 2 of the Homeland Security Act of 2002 (6 U.S.C. § 101), as well as emergency managementpublic healthclinical carepublic worksand other skilled support personnel (such as equipment operators) that provide immediate support services during prevention, response, and recovery operations. [Emphasis added.]

    Employers in the healthcare field and other essential service fields may want to consider nurses and other essential personnel as emergency responders (unless they meet the definition of a “health care provider”). Absent guidance from the DOL, employers denying leave under the emergency responder designation are running a risk, but the DOL is mandated to issue at least guidance before the act goes live, and we expect them to address the definition of “emergency responder.”

Q12. Are employees of small businesses (fewer than 50 employees) eligible to take E-FMLA leave?

  • A12. The DOL can exempt small businesses with fewer than 50 employees when the imposition of such leave requirements would jeopardize the viability of the business. To exempt certain small businesses, the DOL must “issue regulations for good cause . . . to exempt small businesses with fewer than 50 employees from the [leave requirements] when the imposition of such requirements would jeopardize the viability of the business.” Congress has given the DOL the authority to issue regulations without the normal notice and comment period.

Q13. Is E-FMLA leave paid or unpaid?

  • A13. It is both. The first 10 days of leave are unpaid. The FFCRA also includes a paid sick leave provision that would theoretically cover these first two weeks unless they have been exhausted for other reasons. (See the Sick Leave section below.) The paid emergency sick leave (ESL) provisions of the act permits leave in a much wider array of scenarios related to COVID-19, so it could be exhausted before an employee seeks leave under the FMLA portion of the FFCRA. (See question 31, below.) Of course, the employee has the ability to substitute (concurrently exhaust) any form of available paid leave he or she may have during the first 10 days.

     

    After the first 10 days (really, Congress probably was thinking two weeks), E-FMLA leave for a PHE becomes paid (for up to another 10 weeks). An employer must pay the employee up to two-thirds of the employee’s regular rate of pay (an FLSA calculation) for E-FMLA leave. But this amount is capped at a maximum amount of $200 per day and $10,000 total (the aggregate maximum of all paid FMLA leave under this provision). Employers with unions can use multiemployer collective bargaining agreement plans to pay out these amounts so long as the plans are amended to make the payments provided, and the employer funds the plan to pay for the leave.

Q14. Is all FMLA leave now paid leave?

  • A14. No, just E-FMLA leave. The usual rules apply for traditional FMLA leave.

Q15. Can an employee supplement the pay provisions of FMLA leave with any paid leave he or she may have accrued?

  • A15. This practice is allowed if the employer and employee agree. Absent a regulation specific to E-FMLA leave, the normal regulations do not permit an employer to mandate a true-up to draw down other forms of paid leave.

Q16. What about reinstatement?

  • A16. Except as discussed below, normal reinstatement rules seem to apply to most employers. Under the normal FMLA rule, an employee is entitled to no more than he or she would have had, but for the leave. So, traditionally, if the employer were to have a layoff because of economic conditions, and the employee is selected for the layoff for legitimate reasons unrelated to the fact that he or she asked for leave or took leave, then the employee would not have a right to reinstatement. However, Congress enacted certain rules for employers with fewer than 25 employees, which are more restrictive than classic reinstatement rules.

     

    According to that exception, employers with fewer than 25 employees may not be required to reinstate the employee under certain circumstances. In particular, an employer can deny reinstatement if its reason meets the following elements:

    1. The position held by the employee when the leave commenced does not exist due to economic conditions or other changes in operating conditions that affect employment and are caused by the public health emergency. (This exception is narrower than the general rule on reinstatement.)

    2. The employer makes reasonable efforts to restore the employee to a position equivalent to the position the employee held when the leave commenced.

    3. If the employee’s job is gone, and the employer cannot provide a substantially similar position, the employer must make reasonable efforts over a period of one year after the employee’s E-FMLA leave concludes to contact the employee if a substantially equivalent position becomes available.

    Hopefully, the DOL’s guidance and/or regulations on this topic will reconcile the traditional concepts of reinstatement with this more restrictive provision for employers with fewer than 25 employees.

Q17. How much E-FMLA leave is allowed?

  • A17. E-FMLA leave is limited to 12 weeks, minus any other FMLA leave taken by an employee during the employer’s FMLA year. E-FMLA leave is just another form of FMLA leave, and the FFCRA lumps it together with all other forms of leave in which 12 weeks of leave is provided. E-FMLA leave is treated like FMLA leave, and the employee is entitled to use it while the law is in effect, provided other requirements are met. Any amount of E-FMLA leave used will reduce the amount of FMLA leave an employee can take for other reasons during the applicable FMLA year. The FFCRA is currently set to expire on December 31, 2020, but any E-FMLA leave taken may impact the employee’s ability to take FMLA leave for other reasons thereafter (especially if the employer is using a rolling calendar year).

Q18. How is the amount of FMLA leave taken calculated?

  • A18. The language in the amendment is slightly different from the current FMLA regulations. Employers may want to use the “actual workweek method” for determining their employees’ FMLA usage. This requires that employers look at how many hours in a particular week an employee would have worked in order to determine the amount of FMLA leave. The amendment is basically trying to convey the same thing. The FFCRA says that the FMLA leave usage is calculated by using “the number of hours the employee would otherwise be normally scheduled to work.” It uses the term “hours,” but the FMLA uses workweeks and portions of workweeks. E-FMLA leave should be no different.

     

    However, the FFCRA does deviate from the DOL’s method when it comes to employees with variable hours (such as employers who don’t track how many hours they worked in a particular workweek like most exempt personnel). In these instances, the FMLA instructs employers to look back one year prior to the start of leave and count all hours (worked, leave, and holidays) and divide by 52 to get your workweek. The FFCRA instructs employers to go back only six months, and if there are not six months of data, to use the reasonable expectation of the hours worked at the time of hire.

Q19. Can an employee take this leave intermittently?

  • A.19 It remains to be seen. Intermittent leave is permitted for certain types of leave by statute. The employer may grant employees permission for other types of FMLA leave. The FFCRA’s leave does not have a statutory designation about whether the leave may be taken intermittently. Expect the DOL to resolve the issue in its guidance or regulations.

Q20. Are spouses who work together for the same employer required to share E-FMLA?

  • A20. The FFCRA does not address this issue. The rule that narrows FMLA usage for spouses who work for the same employer is statutory and only applicable to certain types of FMLA leave. Presumably, therefore, spouses who work for the same employer can both take a full amount of E-FMLA leave.

Q21. What about leave that employees have already been granted, and what if an employer wants to provide E-FMLA and the pay associated with it?

  • A21. The DOL and the courts have consistently said that FMLA leave is FMLA leave, and leave given that is not FMLA leave cannot be considered FMLA leave. Any leave that was given prior to when the FFCRA takes effect probably will not count toward the total amount of leave. Employers can give as much leave to their employees as they deem appropriate prior to the FMLA provision taking effect, but they may not receive any credit for it under the FMLA.

     

    The same is true for an employer with more than 500 employees who wants to give the functional equivalent of E-FMLA leave. Nothing stops a large employer from providing leave similar to E-FMLA leave, but it cannot count it against the employee’s leave entitlement, and it will not be eligible to receive the tax credits.

Q22. What notice do I need to give employees?

  • A22. The statute and DOL regulations require an employer to provide notice to employees. Under the regulations, an employer must post a DOL-issued notice, and it must create an FMLA policy and distribute it to all employees. Additionally, the DOL states that if an employer has a handbook or a benefits manual, the FMLA policy must be incorporated in it.

     

    Given: (1) the fact that the amendment to the FMLA has a sunset; and (2) the law is expanding the definition of covered employers (such that employers have between 1 and 50 employees), the DOL is likely to require notice but be practical about it. Any poster the DOL publishes will need to be posted, and an employer will need to, at a minimum, distribute the DOL poster to each employee saying it supplements their already existing policies (if they are already a covered employer).

Q23. What if the employees are already furloughed prior to April 2, 2020?

  • A23. The DOL will need to weigh in on this issue. If an employer discharged an employee due to economic conditions, he or she will likely not be eligible for E-FMLA leave. If the furloughed employee is still employed (meaning he or she is on forced leave status because of economic conditions), the employee is likely an eligible employee. If an employee can establish that he or she is caring for a child at home because of a PHE, he or she may have a claim for the pay and benefit protection the FMLA provides (i.e., they want to substitute paid FMLA leave for what is arguably forced leave). However, an employer could argue it is in the midst of a shut-down (where FMLA leave is not counted) and in any event, the employee is not scheduled to work, so the FMLA does not apply. In short, the issue is not decided.

Q24. What are the penalties for violating the E-FMLA provisions of the FFCRA?

  • A24. The penalties for failure to adhere to the provisions of the amendment are the same as those under the FMLA. Both companies and individuals can be sued. However, the FFCRA includes a provision (section 3104) that states that an employer that does not meet the normal covered employer test under the FMLA (i.e., an employer that does not have 50 or more employees within 20 or more workweeks during this calendar year or last calendar year), is not subject to private civil actions by employees. However, these employees would be subject to private civil actions under the jurisdiction of the DOL, which could bring an enforcement action for violations.

Sick Leave

Q25. Which employers are covered?

  • A25. See questions 1 through 5 above.

Q26. What exemptions to coverage exist?

  • A26. Just like E-FMLA leave, employers of healthcare providers or emergency responders may elect to exclude such employees from the paid ESL requirements. However the DOL resolves the definitions, it will be the same for both E-FMLA leave and ESL. The ESL provisions of the FFCRA specifically borrow the definition of “heathcare provider” under the FMLA. (See question 10.)

     

    There is no explicit definition for “emergency responder” in the act, but we expect the DOL to use the same definition for both ESL and E-FMLA leave. (See question 11.)   But given the lack of certainty within the act, employers are left to assess its meaning on a case-by-case basis until such time as the DOL provides further guidance.

    In addition, the DOL may exempt small businesses with fewer than 50 employees in limited circumstances (namely, the DOL can relieve an employer from having to provide ESL for the “School/Childcare Closure” reason described below where these requirements would jeopardize the viability of a business). So, employers with fewer than 50 employees are awaiting DOL regulations that will explain when it can be relieved of the obligation to provide E-FMLA leave and ESL.

Q27. Do employees not working in the United States count toward the employee total and do they get ESL?

  • A27. Unfortunately, the act does not specify whether to include foreign employees in the calculation of whether an employer has fewer than 500 employees. However, the FFCRA is borrowing heavily from the FLSA and specifically aligns the definition of “employee” with the FLSA. Without further guidance, the safest rule of thumb is follow the FLSA. If the FLSA applies to the employee (exempt or non-exempt) then they would get ESL. (See also question 3.)

Q28. Can an employer with 500 or more employees offer ESL?

  • A28. An employer with 500 or more employees can offer ESL, and often must do so given state and local requirements. However, employers with 500 or more employees are not required to provide ESL under the act and are not eligible for tax credits provided by the act.

Q29. What if a subsidiary has fewer than 500 employees, but, when aggregated with the parent, it exceeds 500 employees?

  • A29. See question 5.

Q30. Which employees are eligible for ESL?

  • A30. In short, all employees are eligible, regardless of length of employment. Unlike E-FMLA, the ESL portion of the FFCRA has no requirement that employees have worked a specified number of calendar days, fulfilled an hours-of-service requirement, or a fall within a geographic area prior to eligibility. The act is also different than other state and local ESL laws that typically have a waiting period prior to employees’ eligibility to use accrued ESL. Likewise, the act contains no distinction among covered employers based on employer size in terms of amount of available ESL.

Q31. When must leave be provided?

  • A31. The act provides ESL for eligible employees for any of the following reasons:

     

    1. Quarantine/Isolation Order—when the employee is subject to a federal, state, or local quarantine or isolation order related to COVID-19;

    2. Self-Quarantine—when the employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19;

    3. COVID-19 Symptoms—when the employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis;

    4. Care for Others—when the employee is caring for an “individual” who is subject to a quarantine or isolation order or whose health care provider has advised the individual to self-quarantine due to concerns related to COVID-19;

    5. School/Childcare Closure—when the employee is caring for a son or daughter of such employee if the school or place of care of the son or daughter has been closed, or the child care provider of such son or daughter is unavailable, due to COVID-19 precautions (this is the only one that appears to overlap with E-FMLA);

    6. Similar Conditions—when the employee is experiencing a “substantially similar condition” as specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.

    Note that the act does not define “individual” or “substantially similar condition.”

Q32. May employees be required to use other paid leave before ESL under the act?

  • A32. No. An employer may not require employees to use other paid leave before they use ESL. ESL is available for immediate use.

Q33. Can employers require employees to look for replacements during ESL?

  • A33. Consistent with prior state and local ESL requirements, the act prohibits employers from requiring that employees search for or find a replacement employee to cover hours during which they use ESL.

Q34. What must eligible employees be paid?

  • A34. Employers generally must compensate employees for any paid sick time they take at the higher of their regular rate, the federal minimum wage, or the local minimum wage. However, there are two limitations. First, payments for ESL are capped at $511 per day ($5,110 in the aggregate). Next, employees absent for reasons designated as “Care for Others,” “School/Childcare Closure,” and “Similar Conditions” described above must be compensated at two-thirds of their regular rate, capped at $200 per day ($2,000 in the aggregate). Unlike the amendments to the FMLA in the Families First Coronavirus Response Act, the act does not contain any provision for an initial period of unpaid leave.

Q35. What about employees with varying schedules?

  • A35. Part-time employees’ schedules can vary from week to week, making calculation of their ESL more complicated. The act states that where an employer is unable to determine an employee’s hours with certainty, the employer should use the following calculation: (1) the average number of hours the employee was scheduled per day in the prior six-month period calculated on the date leave is taken, inclusive of leave taken, or (2) if the employee did not work during this six-month period, a reasonable expectation of the employee at the time of hiring of the average daily hours the employee would be scheduled to work.

Q36. What notice must employees give?

  • A36. The act is unclear as to specific employee notice requirements prior to use of paid sick time. At most, the act states that “[a]fter the first workday (or portion thereof)” that ESL is used, employers may require employees to follow “reasonable notice procedures.” However, the act contains no explicit provision for required notice prior to “the first workday.” Any employer policy or practice need require only advance notice to the extent it is reasonable under the circumstances.

Q37. What if an employer previously provided paid sick leave?

  • A37. ESL under the act is in addition to any paid sick leave already offered by an employer (including subject to state or local requirements). Even if an employer has a generous paid sick leave policy offering more than the 80 hours required by the act, the act requires additional ESL for COVID-19 purposes.

Q38. Is there any job protection for employees?

  • A38. Unlike the FMLA amendments in the Families First Coronavirus Response Act, there is no specific job restoration requirement in the act. However, note that it will be a prohibited act to discharge or discipline an employee who (a) takes leave under the act, and (b) has filed any complaint or instituted any proceeding under or related to the act or who has testified in any such proceeding.

Q39. What tax credits are available?

  • A39. Fortunately, payments for ESL under the act are subject to tax credits. Each quarter, employers are entitled to a refundable tax credit equal to 100 percent of the qualified ESL wages paid to eligible employees. Currently, it does not appear employers will be entitled to any tax credits for any ESL payments prior to the effective date of the act.

Q40. Does unused ESL carry over to subsequent years?

  • A40. Prior state and local paid sick leave requirements typically include a requirement that at least some amount of unused paid sick leave carry over from one year to the next. However, that is not the case with ESL under the act, which plainly states carryover is not required. Further, because the act sunsets at the end of December 2020, carryover would be inapplicable.

Q41. Must accrued and unused ESL be paid out to employees upon termination or resignation?

  • A41. Consistent with prior state and local paid sick leave requirements, the act does not require employers to pay out unused ESL to eligible employees at termination, resignation, retirement, or other separation from employment.

Q42. Are there any notice posting requirements?

  • A42. The act requires eligible employers to maintain, in a conspicuous location, where notices to employees are customarily posted, in all work locations, a notice prepared or approved by the Secretary of Labor. However, the Secretary of Labor has yet to provide a model notice posting, although the act requires that this model notice be made publicly available not later than seven days after enactment of the act.

Q43. What are the penalties for violations?

  • A43. Employers that do not provide ESL under the act to eligible employees are subject to damages and penalties as under the FLSA for minimum wage violations, including unpaid wages, an additional equal amount as liquidated damages, and attorneys’ fees and costs.

     

    Employers that unlawfully discharge, discipline, or otherwise discriminate against an eligible employee under the act are subject to injunctive relief under the FLSA, including reinstatement, as well as damages and penalties for unpaid wages, an additional equal amount as liquidated damages, and attorneys’ fees and costs.

Q44. What is the act’s effective date?

  • A44. The act will go into effect on April 2, 2020, and expire on December 31, 2020. The same is true for E-FMLA leave.

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TRENDING LEGAL ANALYSIS


About this Author

Michael M. Shetterly Employment Law & Litigation Attorney Ogletree Deakins Greenville, SC
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Mr. Shetterly is the managing shareholder in the Greenville, South Carolina office. He regularly counsels management on an array of employment and labor law issues, but the primary focus of his practice is FMLA and ADA compliance. He regularly counsels the firm’s clients to ensure management can confidently comply with these complex laws.

Mr. Shetterly began his legal career as a litigator in an array of cases, including construction, insurance, toxic torts and non-compete and trade secret cases. He still litigates today, including employment law cases. He therefore has a blended...

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Matthew Johnson, Ogletree Deakins Law Firm, Labor and Employment Attorney
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Matthew K. Johnson is a shareholder in the Greenville office and represents employers in all aspects of employment and labor law before state and federal agencies and in state and federal courts including, among others, matters under the Uniformed Services Employment and Reemployment Rights Act (USERRA), Title VII of the Civil Rights Act of 1964, Section 1981, the Age Discrimination in Employment Act of 1967 (ADEA), the Family and Medical Leave Act (FMLA), the Americans with Disabilities Act (ADA), the Fair Labor Standards Act (FLSA), and similar federal and state laws. Mr. Johnson regularly counsels clients in issues pertaining to multistate leave compliance, including drafting and review of policies related to paid sick leave and family leave issues arising under state and local law. In addition, he provides counsel and on a variety of employment and labor law matters including terminations, disciplinary actions, and preventive maintenance such as the development and implementation

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