On March 24, 2020, the DOL published
Q&A guidance
to assist employers implement the new emergency paid sick leave and paid FMLA provisions of the Families First Coronavirus Response Act. Some of the key questions answered in the guidance are as follows:
Q:
What is the effective date of the new paid leave laws?
A:
While the statute provided the effective date would be 15 days after President Trump signed the bill into law, the DOL has ruled that the new paid leave laws will be effective
April 1, 2020
(which is 14 days after the bill was signed).
Q:
Is overtime calculated into an employee's rate-of-pay for purposes of determining how much compensation employees are entitled to on paid leave?
A:
Yes, overtime must be considered in the rate-of-pay calculation. Employers must pay an employee for hours he or she would have normally worked, and if the employee would have worked more than 40 hours in the workweek, then overtime must be considered in the calculation.
Q:
Are the new paid leave laws retroactive?
A:
No, neither the emergency paid sick leave provision or the expanded FMLA are retroactive. This means that, for purposes of emergency paid sick leave, leave granted to employees prior to the April 1, 2020 effective date, even leave granted for COVID-19-related reasons, does not count against the 80-hour paid leave entitlement under the new law.
**NOTE**
On the FMLA front, the DOL has not yet issued guidance as to whether an employee who has already taken FMLA leave for any reason during the year would have that previously-taken leave count against his or her entitlement to leave under the expanded FMLA leave. We have no reason to believe that the expanded FMLA provision was intended to give employees an extra 12-week leave beyond the ordinary FMLA entitlement, but we will monitor guidance from the DOL on this point.
The DOL is expected to issue FFCRA regulations in "April 2020."
Q:
Do the new paid leave laws grant employees more than 12 weeks of leave?
A:
No, the DOL's Q&A makes it clear that while an employee could qualify for emergency paid sick leave and expanded FMLA leave, the total amount of paid leave available under the new laws is 12 weeks.
As mentioned above, this is only the DOL's initial guidance on FFCRA employee leave issues, and we expect more guidance in the coming weeks.
