Dive Brief:

• The U.S. Department of Labor (DOL) will observe a "temporary period of non-enforcement" after the Families First Coronavirus Response Act (FFCRA) takes effect April 1, according to an agency statement.
• The non-enforcement is in effect as long as the employer "has acted reasonably and in good faith" to comply with the law.
• "For purposes of this non-enforcement position, '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 Department receives a written commitment from the employer to comply with the Act in the future," DOL said.

Dive Insight:

The news is a crucial piece of information for U.S. employers with fewer than 500 employees, which are directly affected by the FFCRA. While it will sunset on December 31, the FFCRA is the first federal paid leave law encompassing private employers in U.S. history.

DOL's announcement provides some temporary relief for small businesses, many of which face uncertainty as to how they will be able to afford to pay out the FFCRA's emergency Family and Medical Leave Act (FMLA) leave and paid sick leave.

Presumably, however, an employee of a private entity with 50-499 employees could sue his or her employer for an emergency violation of the FFCRA's emergency FMLA leave, Fisher Broyles partner Eric B. Meyer told HR Dive in an email. According to the statute, only DOL can bring action against employers with fewer than 50 employees that violate the FFCRA's FMLA provision, he said.

Because the FFCRA's paid sick leave provision is enforceable under the Fair Labor Standards Act, an employee could assert a claim under that provision without DOL, Meyer added.

Employers with fewer than 25 employees are exempt from the emergency FMLA leave's job protection requirement, provided the following conditions are met:

• An employee takes emergency leave as provided under the FFCRA.

• The leave-taking employee's position is eliminated due to "economic conditions" or other changes that affect the employer's operations resulting from the public health emergency.

• The employer makes "reasonable efforts" to restore the employee to a position equivalent to the position the employee held when leave commenced, with equivalent pay, benefits and other terms and conditions.

• If those "reasonable efforts" fail, the employer makes an effort to contact the employee if an equivalent position becomes available, within a contact period spelled out in the bill.

DOL may create exemptions from both leave provisions, with similar circumstances for each. For the emergency FMLA leave, it may exempt via regulation (a) healthcare providers and emergency responders; and (b) small businesses with fewer than 50 employees if the law's requirements would jeopardize the viability of the business. It is granted identical power with respect to the paid sick leave.