FFCRA Leave…extended…or not?
So the saga continues about the Families First Coronavirus Response Act’s (FFCRA) paid sick leave and expanded/emergency Family Medical Leave provisions. When Congress set the expiration date for these provisions to be December 31, 2020, many of us wondered what would happen to these provisions if COVID-19 was an issue when December 31, 2020, rolled around. I think some assumed that either COVID-19 would have diminished or Congress would extend the deadline. Well here we are in January 2021, and December 31, 2020, has come and gone and if you are reading this blog you may be asking, “Was the FFCRA provisions for paid sick leave and expanded/emergency FMLA extended… or not?" It would appear that between the November election, stimulus package debates, and the holidays, the FFCRA was treated by Congress in the same capacity that you would of an uninvited party guest you have to add an extra place setting at the table for rather than a major sick leave law that needed to be resolved prior to the December 31, 2020 deadline.
In fact, the Department of Labor issued only two published pieces of guidance on the actual deadline of December 31, 2020, providing employers with little to no notice regarding how to stay in compliance. (Scroll down to see those highlighted here in this blog)
So what exactly did Congress do about the December 31, 2020 expiration of the FFCRA? Let’s talk about it in the bullet points below:
Congress did pass and sign into law updates to the FFCRA Leave on December 27, 2020 - this occurred in The Consolidated Appropriations Act, 2021
The law does not currently extend mandated FFCRA Leave past December 31, 2020
On January 1, 2021, Employers subject to FFCRA Leave can choose to voluntarily provide emergency paid sick leave or emergency paid FMLA Leave
This voluntary choice of the Employer does not appear to be for “new” FFCRA leave although there is no specific guidance on the reset of potential FMLA leave depending on how it was being calculated by the employer
Employers that choose to voluntarily offer it appear to be able to then take the tax credit for this leave through March 31, 2021 (always check with your CPA on this tax stuff)
A few further unknowns are those that were in the middle of leave under FFCRA when it expired and how it converts to a potential unpaid FMLA or possibly Americans with Disabilities Act leave. This of course would all depend on the reasons for the leave to begin with and whether there is any eligibility for different leave. Further guidance may occur related to this new update.
Now to the Department of Labor (DOL) end of the year guidance that was published New Year’s Eve. The first Q&A is explaining to all those employees that the FFCRA is a use it or lose it situation at this point. If the employee did not take the leave for a qualifying reason in 2020, then the employer is not required to provide it after the December 31, 2020 expiration deadline.
DOL PROPOSED QUESTION: 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? (added 12/31/2020)
DOL ANSWER: 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).
The DOL seemed concerned that employees would not be able to “collect” on properly taken leave in the 2020 time frame even after the expiration of the mandatory leave, so their next Q&A addresses that issue.
DOL PROPOSED QUESTION: 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? (added 12/31/2020)
DOL ANSWER: 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.
Remember that this is all subject to change and that there are still State laws that could have enacted provisions similar to FFCRA that were extended since the CDC still has us under a pandemic.
In other words… the saga continues…stay tuned because 2021 is just beginning.