Warn Act Covid Coronavirus: When do I need to give notice of layoff or furlough?
Question Presented:
I am an employer who temporarily laid off my employees at the beginning of the pandemic when we anticipated reopening the business after a few weeks.
However, due to changing circumstances, I now am concerned that the layoff will need to be extended beyond 6 months, and may become permanent.
When do I need to provide my employees with a WARN Notice?
Short-term layoffs (6 months or less) that are later extended to last longer than originally contemplated are expressly addressed by the federal WARN Act and regulations. When a layoff is extended beyond 6 months, the layoff is treated as an “employment loss” from the date the layoff started and may violate the WARN Act unless:
- The extension beyond 6 months is caused by business circumstances not reasonably foreseeable at the time of the initial layoff, and
- Notice is given at the time it becomes reasonably foreseeable that the extension beyond 6 months will be required.
Depending on the specific circumstances, events that lead an individual employer to unexpectedly decide to extend the duration of a furlough or layoff may constitute unforeseeable business circumstances such that a shortened notice period may be consistent with the requirements of the WARN Act.
An employer’s extension of the layoff will be judged based on whether the need to extend the layoff could reasonably have been foreseen as of the time notice would have been required. The length of notice will be judged based on whether notice was provided at the point when it became reasonably foreseeable that extension of the layoff would be required.
An employer relying on this exception from the general rule for notice is responsible for showing that the conditions for the exception were met. Please see WARN Act, 29 U.S.C. § 2102(c), and the regulations at 20CFR639.4(b).