DOL Guidance Suggests FFCRA to go into Effect April 1, not April 2

The U.S. Department of Labor (DOL) Wage and Hour Division released a Question and Answer Guidance Page on Tuesday, March 24, 2020, concerning the Families First Coronavirus Response Act (“FFCRA”). 

The DOL’s Q & A page stated that implementing regulations would be forthcoming (no date given), but the Q & As were issued to provide compliance assistance, and presumably give a preview of the upcoming regulations.

Effective Date to be April 1, not April 2. Most notably, the guidance states the FFCRA will go into effect on April 1, 2020, not April 2 as previously assumed. The FFCRA states that it would go into effect “no later than” fifteen days following the date of enactment, which is the date the President signed the Act (March 18). Without further action, the effective date would be April 2, 2020. However, the Secretary of Labor is provided the authority under the Act to specify an earlier date by regulation.  No explanation was given for the one-day change, although it is observed that the new calendar quarter starts on April 1.

The Act is Not Retroactive. The Q & As confirm that the Act is not retroactive. Accordingly, the FFCRA’s paid leave provisions for both emergency paid sick leave and the temporary expanded category of FMLA leave are effective on April 1, 2020 and apply to leave taken between April 1, 2020 and December 31, 2020.

Counting 500 Employees. The DOL Q & As provide guidance on how the applicability threshold of fewer than 500 employees is to be calculated:

• The 500 employee total consists of both full and part time employees. 
• Employers are required to include in their count employees on leave; temporary employees who are jointly employed by the employer and another employer (such as a temp staffing agency), regardless of whether they are maintained on the employer’s payroll; and day laborers supplied by a temporary agency. 
• When employers have separately incorporated subsidiaries and affiliates, both the joint employer test under the FLSA and the integrated employer test under the FMLA must be utilized in determining whether the employees of separate entities must be counted together. 

Please note that this Q & A guidance is an informal compliance assistance document and not the final implementing regulations. The guidance contained in it could be different when those regulations are issued. That being said, the Q & A Guidance was issued by the DOL and likely gives some indication of the DOL’s direction and potential content.

Nyemaster Goode’s Labor and Employment Team will continue to monitor this and all other quickly-changing COVID-19 legal developments, and provide alerts as warranted. Please call any member of the team with questions.