The U.S. Department of Labor’s Wage and Hour Division (WHD) issued additional guidance on the Families First Coronavirus Response Act (FFCRA). The guidance was necessary because the FFCRA’s paid sick leave and expanded family and medical leave requirements expired on December 31, 2020.
The new guidance is in a “Frequently Asked Questions” format on the WHD website. It addresses two big questions:
- Whether workers who did not use their leave entitlement under the FFCRA in 2020 may use such leave after December 31, 2020; and
- How DOL will maintain its enforcement authority over employers’ leave responsibilities while the FFCRA’s paid leave requirements were in effect, even after these leave entitlements have expired.
No FFCRA Leave Entitlement After December 31, 2020
The guidelines clarify that an employer has no legal obligation to provide paid leave under the FFCRA after December 31, 2020. Employers may voluntarily choose to pay for the leave and will be eligible for tax credits until March 31, 2020. The DOL provides an explanation in Question 104 (below):
Q: 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?
A: 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.
The DOL Will Enforce Leave During the Effective Period of the FFCRA
The statute of limitations for both the paid sick leave and expanded family and medical leave under the FFCRA is two years from the date of the alleged violation (or three years in cases involving alleged willful violations). The DOL will enforce the FFCRA for any leave violations between April 1, 2020 and December 31, 2020. This issue is covered in Question 105 (below):
Q: 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?
A: 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 FFCRA is an important law that provided critical financial support to employees impacted by COVID. It also raised challenging compliance issues for employers who had to quickly learn and apply its requirements in all sorts of different and complicated factual scenarios.
The DOL’s Frequently Asked Questions has been and continues to be an important reference for both employees and employers. It is anticipated that the Biden Administration will push for more legislation to protect families impacted by the pandemic.
As the new year evolves, we will provide updates on any additional guidance developments. As always, please let me know if I can help.
Kenneth Winkler, a shareholder at Berman Fink Van Horn, helps employers navigate the employment laws and regulations that govern the workplace.