On March 26, 2020,  the U.S. Department of Labor (DOL) published its first guidance on the Families First Coronavirus Response Act (“FFCRA” or “Act”). The publications included a fact sheet for employees, a fact sheet for employers and a question and answers document. The documents begin to address the numerous questions that businesses have concerning the application of the Act to their business, how to determine coverage, ways to seek an exemption and circumstances under which a small business might do so, and other miscellaneous items concerning wages and hours. The DOL promises that more information will be forthcoming before the effective date of implementation of the Act which now appears to be April 1, 2020.

Although there is a provision in the Act for seeking exemption and DOL Q&A mentions exemptions for small businesses it merely states that to elect the exemption businesses should document why their business with fewer than 50 employees meets the criteria set forth by the DOL, which criteria will be addressed in more detail in forthcoming regulations. The DOL also admonishes businesses not to send materials to the Department when seeking a small business exemption for paid sick leave and expanded family and medical leave. Both the Sick Leave and the extended FMLA provide the Secretary of Labor with authority to exempt small businesses with fewer than 50 employees when the requirements would “jeopardize the viability of the business.” It is hoped that the DOL will provide guidance soon on how it will administer such exemptions. At the present time, there is no guidance to tell business what should be included, what criteria would count, and where to apply.

March 26, 2020 is also the deadline for the DOL to produce and publish a notice including what is required to be provided to employees. We expect a poster with language to be forthcoming.