DOL Issues First Guidance on the Families First Coronavirus Response Act
This is a follow up to the newsletter we sent last week about the Families First Coronavirus Response Act (the Act), which you can access here. Trenam Law’s Employment Law Group wants to let you know that the Department of Labor (DOL) has issued its first guidance on the Act, which you can access here.
The guidance consists of a Fact Sheet for Employers, Fact Sheet for Employees and a Q&A document. As you will see from those documents:
- Effective Date. The Act will take effect on April 1st, not April 2nd as originally anticipated.
- Counting Employees. For purposes of determining if you (as a private sector employer) have fewer than 500 employees (and therefore must comply with the Act):
- You make the determination (in other words, you count your employees) at the time an employee’s leave is to be taken;
- You count all full-time and part-time employees within the US and its territories;
- You count employees on leave, temporary employees you jointly employ with another employer (regardless of which company includes the employees on its payroll) and day laborers provided by a temporary agency (regardless of whether you are the temporary agency or the client firm “if there is a continuing employment relationship”);
- You do not count workers who are truly independent contractors, as opposed to employees, under the Fair Labor Standards Act (FLSA);
- If two entities are joint employers with respect to certain employees, all of those common employees must be counted by those entities; and
- If two or more entities are an integrated employer, then the employees of all entities making up the integrated employer must be counted.
- Temporary Non-Enforcement by DOL. The DOL said it “will observe a temporary period of non-enforcement for the first 30 days after the Act takes effect, so long as the employer has acted reasonably and in good faith to comply with the Act.” “Good faith,” for this purpose, means not engaging in violations willfully, remedying violations and making employees whole as soon as practicable and providing a written commitment to the DOL to comply with the Act in the future.
- Regulations. The DOL anticipates providing regulations relating to the Act in April.
- Small Businesses (Fewer Than 50 Employees). The DOL said “[c]ertain provisions [of the Act] may not apply to certain employers with fewer than 50 employees” (i.e., if compliance with the Act “would jeopardize the viability of [a small business] as a going concern”), and any such exemptions will be covered in the forthcoming regulations. The DOL said such small businesses “should document why” they meet the exemption criteria that the DOL will address in its forthcoming regulations, but “not send any materials to [the DOL] when seeking a small business exemption.”
- Poster. The DOL said it will issue a poster relating to the Act today (March 25th), which covered employers will be required to post in a conspicuous place on their premises.
Please do not hesitate to reach out to Trenam Law’s Employment Law Group if you have questions.