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Employer Prohibited Acts under the Families First Coronavirus Response Act



On March 18, 2020, President Donald Trump signed into law the Families First Coronavirus Response Act (“FFCRA”), which took effect on April 1, 2020, and will remain in effect through December 31, 2020. Among other things, the FFCRA seeks to assist both employees and employers affected by COVID-19.

The FFCRA includes, among other provisions, the Emergency Paid Sick Leave Act (“EPSLA”) and the Emergency Family and Medical Leave Expansion Act (“EFMLEA”). The EPSLA requires certain employers to provide paid leave to employees if such leave is related to COVID-19. The EFMLEA expands an employee’s leave rights under the Family Medical Leave Act (“FMLA”).

Emergency Paid Sick Leave Act – Employer’s Prohibited Acts

Under the EPSLA, an employer must not discharge, discipline, or in any other manner discriminate against employees who (i) take leave under the Act, and (ii) have filed any complaint or instituted or caused to be instituted any proceeding under or related to this Act or has testified or is about to testify in any such proceeding. An employer that violates the EPSLA shall be considered to have failed to pay minimum wages and subject to penalties under the Fair Labor Standards Act (“FLSA”). If an employer commits a willful violation, it will have violated the prohibited acts section of the FLSA and be subject to FLSA penalties with respect to such violation.

Additionally, under the EPSLA, employers cannot require employees to search for and/or find a replacement(s) to cover the hours the employee is using as paid leave. Furthermore, an employer may not require that an employee use other paid leave provided by the employer before the employee uses paid leave under the Act. If an employee is ultimately terminated, the employer is not required to pay out unused EPSLA leave.

Under the EPSLA, employee notice requirements are permissible. Although the EPSLA does not mandate that an employee give notice to an employer, an employer may require reasonable notice procedures for the employee to continue receiving paid sick time.

Emergency Family and Medical Leave Expansion Act – Employer’s Prohibited Acts

As the EFMLEA modifies the FMLA and does not provide a separate prohibited acts and/or enforcement provision, the prohibition and enforcement provisions already set forth under the FMLA govern the modifications as well. However, an employee does not have the right to file a lawsuit directly against an employer if the employer was not previously covered by the FMLA.

In addition to the FMLA prohibitions, there are other areas of guidance listed in the EFMLEA. Such guidance includes that employees are required to provide notice as is practicable, but that employers are not necessarily permitted to mandate and/or deny leave for lack of notice from an employee.

Stay of Enforcement for the Families First Coronavirus Response Act

As noted above, employers must provide certain leave to employees and are prohibited from engaging in specific conduct regarding such leave. If employers engage in violative conduct, the FFCRA can and will be enforced. However, the U.S. Department of Labor, Wage and Hour Division (“WHD”) has provided guidance that states it will not bring enforcement actions against employers for FFCRA violations if such violations occur within thirty (30) days of the FFCRA’s enactment (i.e. March 18, 2020, through April 17, 2020), as long as the employer has made reasonable, good faith efforts to comply.

An employer found to have violated the FFCRA has acted “reasonably” and “in good faith” if (i) the employer remedies the violation(s), including making all affected employees whole as soon as practicable; (ii) the violations were not “willful”; and (iii) the WHD receives a written commitment from the employer to comply with the FFCRA in the future. If the employer fails to meet one of these requirements, the WHD reserves the right to exercise its enforcement authority. After April 17, 2020, this stay of enforcement will be lifted in its entirety.

If you feel your rights under the Families First Coronavirus Response Act have been violated, or if you have any questions regarding your employment rights, please contact the experienced Birmingham employment law attorneys at Michel | King. You can contact us online or by calling us at (205) 319-9724.

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