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COVID-19 Update for Employers: New Notice, and NOW is the Time to Review Your Policies

A New Notice is Required

The Families First Coronavirus Relief Act, H.R. 6201, is now law, and requires many employers to provide paid leave in one form or another during the COVID-19 crisis. The Emergency Paid Sick Leave Act portion of the new law also requires employers to conspicuously post a notice, where such notices to employees are generally posted, prepared by the Secretary of Labor. This notice is now available from the DOL at this link.  An FAQ from the DOL on this notice is also available on their website. One of the important takeaways from the FAQ is that employers with a largely working-from-home workforce may satisfy the conspicuous posting requirement by emailing or direct mailing the notice to their employees or posting it to an internal employee website. 

Employers, Review Your Policies Now – Are You Giving Too Much Leave?

Now is the time for employers to review their policies and benefits that they’ve put in place as a result of COVID-19 and make changes before the paid sick leave and FMLA expansion provisions of the Families First Coronavirus Protection Act become effective on April 1st. If you have added more paid sick leave benefits or other forms of leave in response to the crisis, these may become additional to what is required by the law under the new paid leave provisions, which are required to be in ADDITION to existing paid leave given by employers when the law becomes effective.

Attempts to claw this additional employer-granted leave back after new mandatory leave is in place could be met with sanctions and penalties. Language in the law states, “Nothing in this Act shall be construed…to in any way diminish the rights or benefits that an employee is entitled to under any…existing employer policy.” In other words, your attempts to give extra leave to your employees to cope with the crisis could wind up becoming too much leave once new mandatory leave is added in. You will likely NOT be able to substitute leave in place of the new leave. For example, Employer A decided to give five extra paid days of sick leave in mid-March as the COVID-19 crisis was beginning to truly emerge as a way of helping employees cope with the crisis. If, in mid-April, that employer tells employees that those extra five days count as part of the new ten days of mandatory paid sick leave, that employer may be subject to an FLSA violation if the Department of Labor deems those five paid days of leave to be existing employer policy (and thus the employee was short-changed five paid leave days as required by the law).

Contact the employment attorneys at McBrayer today to determine how this new law might affect your existing policies – make sure you’re not on the hook for more leave than you bargained for!

Cynthia L. Effinger, Member with McBrayer, is located in the firm’s Louisville office. Ms. Effinger’s practice is concentrated in the areas of employment law and commercial litigation. Her employment law practice is focused on drafting employment manuals and policies, social media, wage and hour, non-compete agreements and workplace discrimination. Ms. Effinger can be reached at ceffinger@mcbrayerfirm.com or (502) 327-5400, ext. 2316. 

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This article does not constitute legal advice.

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