Following the enactment of the Families First Coronavirus Response Act (the “FFCRA”) which was discussed in our previous post, on March 24, 2020, the Wage and Hour Division of the U.S. Department of Labor the (“DOL”) released preliminary guideline, comprised of (1) a Fact Sheet for Employers, (2) a Fact Sheet for Employees, and (3) FAQs (collectively, the “Guideline”),which seeks to provide details concerning various aspects on the implementation of the new law.
The FFCRA requires, among other things, that private employers with fewer than 500 employees to provide paid sick and family leave to employees affected by COVID-19. The Guideline clarifies that for the purposes of determining the covered employer status under the FFCRA, such 500-employee threshold is counted as of the time an employee’s FFCRA-mandated leave is to be taken, and should take into account all full-time and part-time employees within the United States or any of its territories, including employees on leave, and employees jointly employed with another employer pursuant to the “joint employers” test under the Fair Labor Standards Act or “integrated employer” analysis under the Family and Medical Leave Act, but should exclude independent contractors and workers who are employed outside the United States.
The DOL also provided a model notice for private employers covered under the FFCRA, which notice must be posted in a conspicuous place on the employer’s premises, or if an employee is already working remotely or on leave, such notice must be delivered to employees via e-mail or direct mail, or otherwise posted on an internal or external website. In addition, new employees must receive copies of the notice upon hire.
The Guideline has confirmed that the FFCRA’s paid leave provisions will take into effect on April 1, 2020 through December 31, 2020. However, the Guideline further advises that the DOL will not enforce the FFCRA for the first 30 days after the law takes effect (i.e. March 18 through April 17, 2020), provided the employer has acted “reasonably” and “in good faith” to comply. The DOL defines “good faith” to mean that the employer remedies violations and makes the employee whole as soon as practicable, the violations were not willful, and the DOL receives a written commitment from the employer to comply with the FFCRA in the future.
The DOL is expected to issue additional guidance and regulations on the implementation of the FFCRA in the near future.