The Wage and Hour Division (WHD) of the Department of Labor (DOL) has issued Field Assistance Bulletin (FAB) 2020-1 in connection with the new Emergency Paid Sick Leave Act and the Emergency Family and Medical Leave Expansion Act provisions of the Families First Coronavirus Response Act (FFCRA). These paid leave provisions are generally applicable to employers* with fewer than 500 employees.

*The "employer" for purposes of FFCRA's paid leave provisions is determined under labor laws.  Therefore, entities with fewer than 500 employees that are part of a controlled group with (collectively) more than 500 employees may be subject to the paid leave provisions.

DOL Field Assistance Bulletin 2020-1

FAB 2020-1 explains that DOL "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 FAB provides that "[f]or purposes of this non-enforcement position, an employer who is found to have violated the FFCRA acts 'reasonably' and 'in good faith' when all of the following facts are present:

1. The employer remedies any violations, including by making all affected employees whole as soon as practicable.  As explained in a Joint Statement by the [DOL], the Treasury Department and the Internal Revenue Service (IRS) issued on March 20, 2020, this program is designed to ensure that all covered employers have access to sufficient resources to pay required sick leave and family leave wages.
2. The violations of the Act were not 'willful' based on the criteria set forth in McLaughlin v. Richland Shoe, 486 U.S. 128, 133 (1988) (the employer 'either knew or showed reckless disregard for the matter of whether its conduct was prohibited…').
3. The Department receives a written commitment from the employer to comply with the [FFCRA] in the future."

Earlier DOL Guidance on FFCRA Paid Leave

FAB 2020-1 follows a set of Q&As released by DOL on Tuesday addressing critical questions such as how an employer must count the number of employees to determine coverage; how small businesses can obtain an exemption; how to count hours for part-time employees; and how to calculate the wages employees are entitled to receive under the FFCRA.

Notably, Tuesday's Q&As address the following:

• FFCRA's paid leave provisions become effective on April 1, 2020 (under the FFCRA, these provisions expire December 31, 2020);
• The "integrated employer" and "joint employment" rules apply when counting the number of employees for purposes of the 500-employee threshold; and
• The number of employees for purposes of the 500-employee threshold is determined by the number of full-time and part-time U.S employees (including jointly employed temporary employees) "at the time [the] employee's leave is to be taken."

 The text of FAB 2020-1 is posted here.

The information contained in this communication is not intended as legal advice or as an opinion on specific facts. This information is not intended to create, and receipt of it does not constitute, a lawyer-client relationship. For more information, please contact one of the senders or your existing Miller & Chevalier lawyer contact. The invitation to contact the firm and its lawyers is not to be construed as a solicitation for legal work. Any new lawyer-client relationship will be confirmed in writing.

This, and related communications, are protected by copyright laws and treaties. You may make a single copy for personal use. You may make copies for others, but not for commercial purposes. If you give a copy to anyone else, it must be in its original, unmodified form, and must include all attributions of authorship, copyright notices, and republication notices. Except as described above, it is unlawful to copy, republish, redistribute, and/or alter this presentation without prior written consent of the copyright holder.