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FFCRA Leave: Gone But Not Forgotten as DOL Issues Guidance Post-Stimulus

Written by: Charla Bizios Stevens

Published in NEHRA News (1/21/2021)

Although Congress had the opportunity to extend the requirement that companies with 500 or fewer employees provide paid medical leave and family leave to workers impacted by COVID-19, it did not do so; and those mandates expired on December 31, 2020.  The eleventh hour stimulus package did keep in place, through March 31, 2021, the tax credit to employers who voluntarily continue to provide this paid benefit.

The USDOL has issued some guidance to provide “clarity around some of the novel issues that FFCRA’s expiration raises” according to Wage and Hour Administrator Cheryl Stanton.  As of December 31, 2020, the DOL added two questions and answers (104 and 105) to its very helpful general FFCRA guidance located at https://www.dol.gov/agencies/whd/pandemic/ffcra-questions.

The questions which address the voluntary nature of further payments to employees and the continuing obligation to pay employees for leave taken during 2020 follow:

I was eligible for leave under the FFCRA in 2020 but I did not use any leave. Am I still entitled to take paid sick or expanded family and medical leave after December 31, 2020? 

Your employer is not required to provide you with FFCRA leave after December 31, 2020, but your employer may voluntarily decide to provide you such leave. The obligation to provide FFCRA leave applies from the law’s effective date of April 1, 2020, through December 31, 2020. Any change to extend the requirement to provide leave under the FFCRA would require an amendment to the statute by Congress. The Consolidated Appropriations Act, 2021, extended employer tax credits for paid sick leave and expanded family and medical leave voluntarily provided to employees until March 31, 2021. However, this Act did not extend an eligible employee’s entitlement to FFCRA leave beyond December 31, 2020.

Employers with questions about claiming the refundable tax credits for qualified leave wages should consult with the IRS.  Information can be found on the IRS website (http://www.irs.gov/coronavirus/new-employer-tax-credits).

I used 6 weeks of FFCRA leave between April 1, 2020, and December 31, 2020, because my childcare provider was unavailable due to COVID-19. My employer allowed me to take time off, but did not pay me for my last two weeks of FFCRA leave. Is my employer required to pay me for my last two weeks if the FFCRA has expired? 

Yes. WHD will enforce the FFCRA for leave taken or requested during the effective period of April 1, 2020, through December 31, 2020, for complaints made within the statute of limitations. The statute of limitations for both the paid sick leave and expanded family and medical leave provisions of the FFCRA is two years from the date of the alleged violation (or three years in cases involving alleged willful violations). Therefore, if your employer failed to pay you as required by the FFCRA for your leave that occurred before December 31, 2020, you may contact the WHD about filing a complaint as long as you do so within two years of the last action you believe to be in violation of the FFCRA. You may also have a private right of action for alleged violations.

The DOL is expected to issue some further guidance on how this expiration impacts or dovetails with unpaid leave for which employees may be eligible under the FMLA.

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