Further DOL Guidance on Families First Coronavirus Response Act

Shortly after publishing its FAQ on the Families First Coronavirus Response Act (the “Act”), the Department of Labor (DOL) issued Field Assistance Bulletin No. 2020-1 (the “Bulletin”).

What does the Bulletin mean for business?

The Bulletin announces a temporary delay in the enforcement of the Act, which goes into effect on April 1, 2020.

The DOL states that it will not bring enforcement actions against employers who are making a good faith effort to comply until after April 17, 2020.

If your business is subject to the Act, you should begin making changes to comply with its requirements.

The Bulletin states:

The Department 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 Act, i.e. March 18 through April 17, 2020, provided the employer has made good faith efforts to comply with the Act.

So, the question is, what constitutes a good faith effort to comply with the Act?

The DOL sets forth three conditions, all of which must be present for an employer to be treated as having made a good faith effort to comply:

  1. An employer must remedy any violation, including making all employees whole
  2. The violations must not be willful. A violation is willful if an employer “either knew or showed reckless disregard for the matter of whether its conduct was prohibited”.
  3. The employer provides the DOL with a written commitment to comply with the requirements of the Act in the future.

The stay on enforcement will be lifted on April 17, 2020.

In the meantime, the DOL will take enforcement action against an employer who violates the Act willfully, fails to provide a written commitment to the DOL regarding future compliance with the Act, or fails to remedy the violation.

While not permanent, this temporary stay should give employers some breathing room while trying to figure out how to comply.

Is your business affected by the DOL’s Bulletin?