THE DOL ISSUES GUIDANCE ON THE FAMILIES FIRST CORONAVIRUS RESPONSE ACT (“FFCRA”)
McGuire, Craddock & Strother
March 25, 2020
The Department of Labor has published a number of resources on the new FFCRA, which can be accessed here: https://www.dol.gov/agencies/whd/pandemic. Notably, the Questions and Answers make clear that the effective date of the FFCRA is April 1, 2020, which is different than the April 2, 2020 originally anticipated. The Questions and Answers also include the following clarification on the small business exemption that may apply for businesses with fewer employees if complying would jeopardize the viability of the business as a going concern: “To elect this small business exemption, you should document why your business with fewer than 50 employees meets the criteria set forth by the Department, which will be addressed in more detail in forthcoming regulations. You should not send any materials to the Department of Labor when seeking a small business exemption for paid sick leave and expanded family and medical leave.”
The Department of Labor has also published forms of the notice required under the FFCRA, which are available at the link above. There is one notice for federal employers and another notice for non-federal employers.With many employees now working remotely, the Department of Labor has made clear that an employer satisfies its posting requirement by emailing or direct mailing the notice to all employees or by posting the notice on an employment information internal or external website. Answers to other questions related to the notice can be found at: https://www.dol.gov/agencies/whd/pandemic/ffcra-poster-questions.
Lastly, the Department of Labor has issued a Field Assistance Bulletin, stating that “[t]he Department will not bring enforcement actions against any public or private employer for violations of the Act occurring within 30 days of the enactment of the FFCRA, i.e. March 18 through April 17, 2020, provided that the employer has made reasonable, good faith efforts to comply with the Act.” The Bulletin provides guidance for the terms “reasonable” and “in good faith” that should be considered when evaluating whether an employer is likely to be given grace related to any enforcement action. The Field Assistance Bulletin can be accessed at the following link: https://www.dol.gov/agencies/whd/pandemic.
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This correspondence should not be construed as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general informational purposes only, and you are urged to consult a lawyer concerning your own situation and legal questions. The information contained herein is current as of the date of this article.