By: Senior Counsel Camille Stearns Miller and Intern Elizabeth Margolis
“If you fail to prepare, you’re prepared to fail.” – Olympian Mark Spitz
In April 2020, the U. S. Department of Labor issued guidelines for retaliation and penalties against employers who fail to allow their workers to participate in the Emergency Paid Sick Leave Act (EPSLA) and the Emergency Family and Medical Leave Expansion Act (EFMLEA). Both acts are part of the Family First Coronavirus Response Act.
Penalties for Non-Compliance with EPSLA
- An employer can face fines up to $10,000, go to prison for six months or both if convicted of violations of the Act.
- If found liable in civil litigation, an employer can pay lost wages, liquidated damages and be compelled to rehire or promote an aggrieved employee. Additional costs include: payment of the judgement, court fees, and attorneys’ fees.
- The U. S. Secretary of Labor can instigate non-legal and legal proceedings if violations of the Act are found.
Penalties for Non-Compliance with EFAMLEA
- Per FMLA §2617 guidelines, any employer who discriminates against an employee claiming EFMLEA is liable to pay (with interest) lost salary, wages, etc. denied to the employee. Additional costs may include judgement and court fees.
- An employer can be liable for any monetary damage that occurred due to the violation for up to a total of 12 weeks if wages were not denied to the employee.
- The U. S. Secretary of Labor can investigate, file suit, and recover sums from employers.
- Small businesses are exempt from private suits. 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.
Hypothetical
Company A reopens and requires all employees to return to work August 1, 2020. Employee X’s parent, who lives with him, contracted COVID-19 and is told to self-quarantine. Employee X needs two weeks off to care for the parent, as he is his sole care giver. Employee X is fired. Is this legal?
No. Employee X is entitled to 80 hours of paid sick leave per the provisions of the EPSLA.
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