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Important New Guidance on Federal Emergency Sick Leave and FMLA

The U.S. Department of Labor’s Wage and Hour Division (WHD) has announced its first round of published guidance regarding the Families First Coronavirus Response Act (FFCRA). This guidance addresses critical questions such as how an employer must count the number of their 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 under this law.

From the fourteen (14) questions answered by the Department of Labor, I believe the two most important clarifications provided are as follows:

1. Effective Date. The DOL is now taking the position that the new laws become effective April 1, 2020. Due to the uncertainty created by the statutory language that it would take effect “no later than fifteen days after the date of enactment”, the DOL has exercised its regulatory power to define an effective date, which is now April 1, 2020.

2. No Credit for Leave Taken Prior to April 1, 2020. The guidance provided by the DOL indicates that employers will not receive any credit toward the new leave entitlements for leave provided to an employee prior to April 1, 2020. Despite the belief held by many scholars and experts that these leave entitlements would apply retroactively, the DOL has now made it clear that this will not be the case. Additionally, employers must provide the full entitlements provided under the FFCRA starting April 1, regardless of any leave provided previously.

The DOL’s Questions & Answers publication referred to herein can be found in its entirety at: https://www.dol.gov/agencies/whd/pandemic/ffcra-questions

Please be advised that this is just the first round of information and compliance assistance to come from the U.S. Department of Labor on this new law. We will continue to keep you updated on additional information as it becomes available.

The Model Notice required by the FFCRA is now available. Please contact Christine Vizcaino if you would like to receive a copy of this poster for your workplace.

NOTE: This article was updated on March 26, 2020. Because the COVID-19 situation is dynamic, with new governmental measures each day, employers should consult with counsel for the latest developments and updated guidance on this topic.