As we have written about previously, Congress opted to not extend the mandatory leave provisions of the FFCRA as part of the stimulus bill passed at the end of the year. However, lingering questions remain, especially considering Congress’s decision to extend availability of the FFCRA’s payroll tax credit to employers who are voluntarily providing paid leave for formerly FFCRA-qualifying reasons through March 31, 2021. In order to address some of these issues, the Department of Labor updated its guidance on the FFCRA with two new questions and answers added on December 31, 2020.
The DOL’s New Guidance
When the expiration of the FFCRA leave provisions was announced, employers and employees alike wondered about the parameters of formerly mandated FFCRA leave. Employees who were eligible for leave before the FFCRA expired but did not take any such leave wondered if their entitlement carried forward into the new year. In its new guidance, the DOL states that the answer to this question is no: an employee’s entitlement to FFCRA leave expired along with the law, even if the employee had been eligible to take such leave while the law was in effect but did not do so. However, the DOL pointed out that employers may voluntarily decide to provide qualifying employees with paid leave for FFCRA-qualifying reasons, and many employers may choose to do so since they will still be able to claim the employer tax credit for providing this leave until March 31, 2020. Unfortunately, the DOL guidance did not address the outstanding question of whether the payroll tax credit caps will apply through March 31, 2021. We can only hope that this will be the subject of further guidance from the DOL.
Enforcement actions remain another source of ambiguity for employers despite the FFCRA leave provisions’ expiration. Did employees’ ability to sue for enforcement or non-compliance with the FFCRA leave mandates expire along with those provisions? No, says the DOL. The Wage and Hour Division will enforce the FFCRA related to any leave taken or requested between April 1, 2020 and December 31, 2020 – the dates the leave provisions were effective. For example, if an employee requested FFCRA leave on May 1, 2020 because her childcare provider was unavailable due to COVID-19 and her employer only granted her unpaid time off, this employee may file a complaint with the Wage and Hour Division or potentially bring a private cause of action against her employer. Employees must file complaints or bring their claims within two years from the date of the alleged violation, and employees get an extra year if they are claiming a willful violation.
Bottom Line
Although the FFCRA’s mandatory leave provisions expired last year, employers may not be able to turn the page on the law and its ramifications just yet. While entitlement to FFCRA leave expired on December 31, 2020, employees may still bring complaints and suits related to FFCRA leave for up to three years.
We will continue to update you as the DOL issues additional guidance on these topics.