As employers furlough or lay off employees as a result of coronavirus-related business circumstances, we have received questions on whether the company should issue mass layoff notices under the federal Worker Adjustment and Retraining Notification (WARN) Act. Last week, the U.S. Department of Labor issued a guidance for employers on WARN requirements during the COVID-19 emergency. The guidance does not make any changes to existing law but discusses WARN’s requirements in light of common situations caused by COVID-19.
The guidance reminds employers that WARN only applies to employment losses that last for at least six months. If the employer did not originally anticipate that the furlough would last six months, but business circumstances do not permit recall, the employer can be held liable under WARN for not providing such notice at the time of the initial furlough. Another section of the guidance addresses whether coronavirus-related business losses qualify as “unforeseen business circumstances,” which excuse employers from providing the full required 60-day advance notice. While indicating that such circumstances may qualify for the exemption, DOL reminds employers that they are still required to provide notice as soon as they become aware of the loss of business that causes the need to lay off employees.
The WARN rules were written in 1991, before email use was common for employee communications. DOL helpfully confirms that employers may provide WARN-related notices to workers and state and local officials via email, but it says that such notices must be individually addressed to recipients. The guidance is not binding law but provides useful information for employers deciding whether or not to issue WARN notices. It can be found here.