FFCRA Update and Electronic Workplace Posters

Poyner Spruill LLP

Poyner Spruill LLP

The Wage and Hour Division of the U.S. Department of Labor has issued guidance regarding optional extension of the Families First Coronavirus Response Act (“FFCRA”) and electronic posting of required employment law notices as employees continue to work remotely.

Families First Coronavirus Response Act

FFCRA required employers with between 50 and 500 employees to provide two weeks of paid sick leave and up to 10 weeks of paid family leave to employees who needed it for pandemic-related reasons between April 1, 2020 and December 31, 2020. Now that the paid leave requirement has expired, companies no longer have an obligation to fund employees’ sick time or family leave. However, DOL released FAQ guidance noting that continued compliance with the now-expired leave requirements through March 31 will allow employers to collect a tax credit.

Therefore, although Congress opted not to extend the FFCRA’s paid leave requirement in its year-end pandemic stimulus bill, it extended the tax credit under the Consolidated Appropriations Act. This would make an employer whole for voluntarily providing paid sick leave and expanded family and medical leave to employees until March 31, 2021. More information on the tax credits can be found on the IRS Website.

Electronic Posting Guidance

DOL issued employer guidance on December 29, 2020 on electronic postings of required employment law notices. DOL published this guidance in response to questions from employers regarding the “use of email or postings on an internet or intranet website, including shared network drive or file system, to provide employees with required notices of their statutory rights.” The field assistance bulletin provides guidance as to when these electronic postings satisfy the requirements of the Fair Labor Standards Act, Family and Medical Leave Act, Employee Polygraph Protection Act, and Service Contract Act.

Generally, DOL will only consider electronic posting an acceptable substitute for continuous posting in the workplace requirement when (1) all of the employer’s employees exclusively work remotely, (2) all employees customarily receive information from the employer via electronic means, and (3) all employees have readily available access to the electronic posting at all times. For employers that have employees both on-site and teleworking full-time, DOL recommends both methods of posting (electronic and physical posting).

DOL also articulated the following posting requirements:

  • If a particular statute requires delivery of individual notices to each employee, the notice requirements may be met by email delivery only if the employee typically receives information from the employer electronically;
  • The electronic notice must be as effective as a physical, hard-copy posting;
  • Individuals must be able to access the electronic posting without having to specifically request permission to view a file or access a computer;
  • Posting will be insufficient if an employer does not customarily post notices electronically; and
  • Posting will be insufficient if the affected individuals cannot easily determine which electronic posting is applicable to them and their worksite.

The bulletin also provides guidance specific to certain federal statutes that tracks with the general guidance above. For more information, see the Field Assistance Bulletin on Electronic Posting or contact your employment counsel.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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