Late on March 24, the Department of Labor published its first in what is anticipated to be a series of regulatory interpretations of the new Expanded Family and Medical Leave Act and Expanded Paid Sick Leave Act. While the Department of Labor acknowledges that more guidance is needed and will be forthcoming, including a Model Notice for employers to post in a breakroom or common area that should be out this week, the guidance, which can be found at https://www.dol.gov/agencies/whd/pandemic/ffcra-questions, does answer a number of important questions.
First and foremost, it clears up confusion around the effective date and retroactivity of the Acts. Early drafts of House Bill 6201, the Families First Coronavirus Response Act, contained retroactivity provisions, while the final version simply said the Expanded FMLA and Paid Sick Leave Act would become effective no later than 15 days after enactment, which was March 18. We now know that the effective date is April 1, 2020.
The DOL also addressed a few other topics on which employers have had questions. Among those were how to determine whether a company has 500 employees (measure from the time of the leave), hardship exemptions for small employers (more regulations still to come), the lack of retroactivity of the Expanded FMLA and Paid Sick Leave Act, and the interplay between the two (and the interplay between the regular FMLA and Expanded FMLA). These interpretations were generally what we expected — nothing earth-shattering — which means that the subsequent guidance or actual regulations that drill down into the gray areas of the Acts will likely address the thornier questions.
Stay tuned for those guidance or regulatory updates, which we will cover here as they are issued. Until then, if you have any questions or concerns, please contact your Katz Teller attorney or email us at email@example.com.