Although the Families First Coronavirus Response Act (FFCRA) went into effect April 1, 2020, the Department of Labor (DOL) announced a temporary non-enforcement period to allow employers to come into compliance with this new law. The temporary non-enforcement period expired on April 18, 2020. Since that time, the DOL has investigated and issued enforcement actions against six different employers:
- On April 23, 2019, the DOL ordered a Tuscan, Arizona electrical company to pay one employee $1,600 in back pay. The employer had refused to provide the employee emergency paid sick leave, as required under the FFCRA, after health care providers ordered the employee to self-quarantine due to COVID-19 symptoms.
- On April 29, 2019, the DOL ordered a tire store located in Anaheim, California, to provide $2,606 in back pay to an employee who had been ordered by a health care provider to self-quarantine while he wanted for a family member’s COVID-19 test result. Although the employee had provided documentation to support the advice to self-quarantine, the employer mistakenly believed the employee needed to provide proof of a positive COVID-19 test to qualify for leave under the FFCRA. In addition to back pay, the employer agreed to future compliance with the FFCRA.
- On May 12, 2020, a road construction company in Wolfforth, Texas was ordered by the DOL to pay an employee $1,200 in back pay wages for failing to provide emergency paid sick leave when an employee was ordered by a health care provider to self-quarantine and was later hospitalized after the employee showed symptoms of COVID-19. In addition to back pay, the employer agreed to future compliance with the FFCRA.
- Also, on May 12, 2020, the DOL ordered a trucking company in Avon, Indiana, to pay $3,017 in back pay to an employee who was experiencing COVID-19 symptoms and seeking a medical diagnosis.
- On May 13, 2010, a food retailer in Honolulu, Hawaii, was ordered by the DOL to pay an employee $800 in back pay after the employee was denied emergency paid sick leave to care for their child whose school closed due to the COVID-19. The employer also agreed to post the required FFCRA poster.
- On May 14, 2020, the DOL ordered an HVAC and plumbing company in Phoenix, Arizona, to pay an employee $1,000 in back pay to one employee after the employer denied him emergency paid sick leave after a health care provider ordered the employee to self-quarantine for COVID-19-related reasons. The DOL found that the employer only paid two of the 13 days the employee was ordered to self-quarantine.
The DOL did not include any additional details or guidance regarding their enforcement actions in any of the news releases for each of the above actions. However, these enforcement actions do provide employers some insight into how the DOL is currently handling situations where an employer fails to comply with the FFCRA. To date, the DOL has only ordered employers to pay employees back pay that is equal to what they should have received in emergency paid sick leave pay. No additional penalties, such as liquidated damages, are being assessed. Also, all enforcement actions have only been to enforce the emergency paid sick leave provisions of the FFCRA. None of the enforcement actions to date have dealt with the expanded Family and Medical Leave Act provisions.
Employers should be mindful that this kind of enforcement approach by the DOL may change. Under the FFCRA, most employees may file a complaint with the DOL or file an action in any federal or state court to recover back pay, liquidated damages, and an amount for costs and reasonable attorney’s fees. The DOL may bring forth an action against an employer that not only includes back pay but also liquidated damages. If the DOL brings forth an action for a repeated violation, an employer could also face civil penalties and additional liquidated damages. So while the DOL has initially taken a kinder approach to FFCRA violations, this may change in the future as more employers become more educated and have more time to come into compliance.
Employers Council is here to help. We encourage members to continue to reach out to us with your FFCRA questions, including questions related to specific leave requests.