The U.S. government’s Families First Corona Virus Response Act (FFCRA) will have a significant impact on employers. Employers can learn more about the FFCRA here.

Very recent guidance from the Department of Labor’s Wage & Hour Division tells us the following:

1. The FFCRA will become effective April 1, 2020.

2. The paid leaves available under the FFCRA (that is, the emergency sick leave (80 paid hours) and expanded FMLA leave (12 weeks, ten weeks paid)) are not retroactive. This means, under this law, employees aren’t entitled to pay for time off taken before April 1, 2020. This also means that an employer can’t deny an employee paid sick leave under the FFCRA because she already received paid sick leave before April 1st under some other law or policy.

3. Employees can be eligible for both types of federal-sanctioned paid leave, (1) emergency sick leave and (2) expanded FMLA. The total leave under the FFCRA is capped at 12 weeks, and emergency sick leave and expanded FMLA can run concurrently.

Finally, there is new insight about how the law may – or may not – apply to a company with fewer than 50 employees.

QUESTION: If providing child care-related paid sick leave and expanded family and medical leave at my business with fewer than 50 employees would jeopardize the viability of my business as a going concern, how do I take advantage of the small business exemption?

ANSWERTo elect this small business exemption, you should document why your business with fewer than 50 employees meets the criteria set forth by the [Department of Labor], which will be addressed in more detail in forthcoming regulations. You should not send any materials to the Department of Labor when seeking a small business exemption for paid sick leave and expanded family and medical leave.

Employers can read more about the Wage & Hour Division’s guidance on FFCRA here. We’re still waiting on regulations that should provide further clarity, and we’ll be sure to address them when they’re made public.

If you’re an employer with questions about how to comply with the FFCRA, you’re not alone. Contact us. Our team of attorneys is here to assist you.