Employment Law Alert: Important New Guidance on Federal Emergency Sick Leave & FMLA

Today the U.S. Department of Labor published Questions & Answers regarding the recently enacted federal Emergency Paid Sick Leave Act, and Emergency Family & Medical Leave Expansion Act (see our firm’s alert summarizing those laws).  We think these are the most important clarifications from the DOL publication:

• April 1, 2020 Effective Date:  The DOL now takes the position that the new laws become effective on April 1, 2020, rather than April 2, 2020.  Before today, legal articles published by law firms consistently interpreted the law to take effect on April 2, 2020, based upon the statutory language that the laws would take effect “no later than 15 days after the date of enactment” on March 18, 2020.  However, the “no later than” verbiage does appear to leave room for DOL to exercise its regulatory power to define an earlier effective date, as indicated by today’s publication. 
• No Credit for Paid Leave Employers Provided Before April 1, 2020:  The new guidance indicates that employers do not receive any credit toward the new leave entitlements for leaves provided before April 1.  In other words, employers must provide the full entitlements starting April 1, regardless of any leave provided previously.  The answer to question 11 states that an employer cannot deny Emergency Paid Sick Leave based upon paid leave provided before April 1.  The answer to question 13 states that neither the Emergency Paid Sick Leave nor the Emergency FMLA leave requirements are retroactive. 
• Paid Portion of Emergency FMLA Includes Overtime Hours:  The answer to question 6 states that all normally scheduled hours, including overtime, must be included with respect to the paid portion of Emergency FMLA Leave (leave after the 10th day of leave is the paid portion, through the end of the total maximum 12-week leave entitlement).  Although overtime hours are included, answer 6 states that overtime premium rates do not apply.  Answer 6 states that overtime hours are not included in Emergency Paid Sick Leave.