The U.S. Department of Labor (“DOL”) recently updated its Families First Coronavirus Response Act (“FFCRA”) Q&A guidance to provide additional information regarding FFCRA leave after December 31, 2020. Please note that the Q&A is not in place of the regulations, but give some guidance until additional regulations are released. Here’s what healthcare providers and their practices should know:
- Your employee was eligible for leave under the FFCRA in 2020 but did not use any leave. Is your employee still entitled to take paid sick or expanded family and medical leave after December 31, 2020? You are not required to provide your employee with FFCRA leave after December 31, 2020, but you may voluntarily decide to provide 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.
- Your employee used 6 weeks of FFCRA leave between April 1, 2020, and December 31, 2020, because your employee’s childcare provider was unavailable due to COVID-19. You allowed the employee to take time off, but did not pay her for her last two weeks of FFCRA leave. Are you required to pay the employee for her last two weeks if the FFCRA has expired? Yes. DOL’s Wage and Hour Division (“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 you failed to pay your employee as required by the FFCRA for your leave that occurred before December 31, 2020, the employee may contact the WHD about filing a complaint within two years of the last action the employee believes to be in violation of the FFCRA. Your employee may also have a private right of action for alleged violations.
The COVID-19 pandemic and response is an evolving situation. All levels of government are engaged in the process of preparing new legislation, regulations and orders both to stem the spread of the virus and to provide relief to employers and employees. We will continue to monitor the situation and provide updates as applicable, especially as such updates affect healthcare providers and their practices.