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DOL Issues Initial Guidance on Families First Coronavirus Response Act

On March 24, 2020, the U.S. Department of Labor ("DOL") issued its first form of guidance on the leave provision contained in the Families First Coronavirus Response Act ("FFCRA") passed last week. The DOL notes that it will also be promulgating official new regulations in the coming days. The entire DOL Q&A is linked here: https://www.dol.gov/agencies/whd/pandemic/ffcra-questions.

One of the significant questions addressed by the DOL is when and how employers should count employees to determine whether they fall within the "under 500" requirement for purposes of coverage under the FFCRA. According to the guidance, employers should calculate total "head counts" each time an employee requests leave.

Employers should count both full-time and part-time employees, but independent contractors are not included. The headcount should also include employees on leave, as well as temporary employees who are jointly employed by the employer and another company (e.g., temporary employment agencies, regardless of whether such temporary employees are maintained on the temporary agency's payroll).

For employers with associated entities, parent companies, and affiliates, the DOL guidance suggests (without crystal-clear definitions) that a corporation (including its separate establishments or divisions) typically will be considered a single employer, and all of its employees must each be counted towards the "under 500" employee threshold. But where a corporation has an ownership interest in another corporation, the two corporations are still typically separate employers unless they can be considered "joint employers" under the Fair Labor Standards Act. If two entities are found to be joint employers, all of their common employees must be counted in determining whether Emergency Paid Sick Leave or Expanded FMLA leave must be provided. (See our discussion of these new forms of leave under the FFCRA here: https://www.coollaw.com/blog/2020/03/new-law-families-first-coronavirus-response-act.shtml.)

In addition, the DOL's guidance adopts the "integrated employer" test under the traditional FMLA rules to determine whether two or more entities should be considered separate or combined for leave purposes under the new Act. Entities are an "integrated employer" for headcount purposes if they have (a) common management, (b) interrelation between operations, (c) centralized control of labor relations, and (d) a degree of common ownership/control. If two or more entities constitute an "integrated employer," then employees of all such entities will be counted in determining employer coverage.

Finally, in a separate "Field Assistance Bulletin" also published by the DOL on March 24, the DOL announced that it will observe a temporary period of non-enforcement of the new FFCRA from March 18 to April 17, 2020. During this period of non-enforcement, the DOL will not bring enforcement actions against any public or private employer for violations of the Act occurring within 30 days of the enactment, provided that the employer has made reasonable, good faith efforts to comply. Specifically, all of the following factors must be present:

  1. The employer remedies any violations once they become apparent, including by making all affected employees whole as soon as practicable;
  2. The violations of the Act are not "willful," such that the employer "either knew or showed reckless disregard for the matter of whether its conduct was prohibited"; and
  3. The DOL receives a written commitment from the employer to comply with the Act in the future.

The entire Field Assistance Bulletin concerning this new non-enforcement period can be located here: https://www.dol.gov/sites/dolgov/files/WHD/legacy/files/fab2020-1.pdf

The Labor and Employment lawyers at Coolidge Wall will post additional analysis about employer responsibilities under the Families First Coronavirus Response Act, as well as information updates on other federal and state developments related to the coronavirus outbreak. Should you have specific questions, please contact us.

Contributing attorneys:

Marc L. Fleischauer
David P. Pierce
Benjamin A. Mazer

Disclaimer: The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation. We invite you to contact us and welcome your calls, letters and electronic mail.

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