U.S. Department of Labor Issues Guidance on Families First Coronavirus Response Act

Much has been written about the Families First Coronavirus Response Act in the week since it has been passed.  Earlier this week, the U.S. Department of Labor (“DOL”) issued initial guidance on the Act, including a Questions & Answers.  We wanted to highlight a few of the more noteworthy provisions of the Q&A that will be of interest to affected employers – those with fewer than 500 employees.

First and foremost, the DOL announced that the effective date of the Act will be April 1, 2020, not April 2, 2020.  We assure you that this is not an April Fool’s joke.  According to the DOL guidance, any paid leave given to employees before April 1, 2020 will not count toward the Emergency Paid Sick Leave and Emergency FMLA Leave required by the Act. 

The DOL also confirmed our interpretation that the Emergency FMLA Leave and Emergency Paid Sick Leave run concurrently in situations where both leaves apply – where an employee who has been working for the employer for at least thirty (30) days is unable to work or telework to care for a minor child whose school or child care provider is closed or unavailable for reasons related to COVID-19.  In addition, the DOL clarified that the potential exemptions from the Emergency Paid Sick Leave and Emergency FMLA Leave for small businesses with fewer than fifty (50) employees will only apply to leave taken for these reasons.  The DOL indicated that these regulations are expected at some point in April 2020.

Finally, the DOL stated that it will observe a 30-day temporary period of non-enforcement after the Act takes effect, so long as the employer has acted reasonably and in good faith to comply with the Act.  “Good faith” exists when violations are remedied and the employee is made whole as soon as practicable by the employer, the violations were not willful, and the DOL receives a written commitment from the employer to comply with the Act in the future.

Although this guidance has answered some questions, many more remain.  For example, can employees using Emergency FMLA Leave use it intermittently or on a reduced schedule?  And what will an employer with fewer than 50 employees need to show to prove that the Act’s Emergency Paid Sick Leave and Emergency FMLA Leave requirements “jeopardize the viability of the business as a going concern”? 

As this situation progresses, we will continue to keep employers and human resources professionals updated on all key developments related to COVID-19 and its impact on the workplace.  Please be sure to subscribe to our blog and follow us on social media so that you can receive timely updates and analysis on the issues that affect your workplace.  For questions about this or any other labor and employment law matter, please do not hesitate to contact the attorneys at Hoffman & Hlavac.