Update | Families First Coronavirus Response Act: Added Questions and Answers 104-105
Published: 01.06.2021
U.S. Department of Labor Clarifies Families First Coronavirus Response Act Provisions2021 Update: The program was set to expire December 31st, but employers have the option to extend the program to March 31st. They will still receive tax credits if they follow the program as originally intended, meaning a maximum of 80 hours per employee since its inception.
When: Effective September 16, 2020
Why: The revisions made by the new rule clarify workers’ rights and employers’ responsibilities under the FFCRA’s paid leave provisions, as a result of the U.S. District Court for the Southern District of New York in an Aug. 3, 2020, decision that found portions of the regulations invalid.
What: The revisions maintain the following:
- Reaffirm the requirement that employees may take FFCRA leave only if work would otherwise be available to them.
- The qualifying reason must be the actual reason the employee is unable to work, as opposed to a situation in which the employee would have been unable to work regardless of whether he or she had a FFCRA qualifying reason. This means an employee cannot take FFCRA paid leave if the employer would not have had work for the employee to perform, even if the qualifying reason did not apply.
- Leave is most simply and clearly understood as an authorized absence from work; if an employee is not expected or required to work, he or she is not taking leave. This interpretation is consistent with the Department’s long-standing interpretation of the term “leave” in the FMLA (which the EFMLA amended).
- Reaffirm and provide additional explanation for the requirement that an employee have employer approval to take FFCRA leave intermittently.
- The qualifying reasons to take paid sick leave are medically related because they include situations where the employee may have an elevated risk of being infected with COVID-19 or is caring for someone who may have an elevated risk of being infected with COVID-19. Rather than justifying intermittent leave, these medical considerations militate against intermittent FFCRA leave where the employee may have an elevated risk of being infected with COVID-19 or is caring for someone who may have such elevated risk. Permitting such an employee to return to work intermittently when he or she is at an elevated risk of transmitting the virus would be incompatible with Congress’ goal to slow the spread of COVID-19.
- Revise the definition of “healthcare provider” to include only employees who meet the definition of that term under the Family and Medical Leave Act regulations or who are employed to provide diagnostic services, preventative services, treatment services or other services that are integrated with and necessary to the provision of patient care which, if not provided, would adversely impact patient care.
- To define the term otherwise would sweep in certain employees of health care facilities “whose roles bear no nexus whatsoever to the provision of healthcare services.”
- Clarify that employees must provide required documentation supporting their need for FFCRA leave to their employers as soon as practicable.
- Correct an inconsistency regarding when employees may be required to provide notice of a need to take expanded family and medical leave to their employers.
U.S. Department of Labor Revises Regulations to Clarify Paid Leave Requirements under the Families First Coronavirus Response Act: https://www.dol.gov/newsroom/releases/whd/whd20200911-2
Paid Leave under the Families First Coronavirus Response Act- Federal Register (unpublished as of 9/14/20): https://s3.amazonaws.com/public-inspection.federalregister.gov/2020-20351.pdf
Update | Families First Coronavirus Response Act: Added Questions and Answers 101-103 (updated on 9/11/2020): https://www.dol.gov/agencies/whd/pandemic/ffcra-questions
101. When were the invalidated provisions of the Department’s FFCRA paid leave regulations vacated? (added 09/11/2020)
August 3, 2020. The Department first issued its FFCRA paid leave regulations on April 1, 2020. Only certain provisions of those regulations were at issue in the lawsuit New York v. Scalia, Civ. No. 20-3020-JPO (S.D.N.Y.). The challenged provisions were vacated when the District Court issued its opinion and order on August 3, 2020. As of August 3, 2020, the work availability requirement provisions, the provision requiring an employee to obtain his or her employer’s approval before taking FFCRA leave intermittently, the provision defining “health care provider” for purposes of employees whose employer may exclude them from FFCRA leave, and the provision requiring documentation of a need for leave prior to taking leave were vacated. The remainder of the FFCRA paid leave regulations were unaffected.
102. Where did the District Court’s order vacating certain provisions of the FFCRA paid leave regulations apply? (added 09/11/2020)
Nationwide. Based on the specific circumstances in the case and language of the District Court’s order, the Department considers the invalidated provisions of the FFCRA paid leave regulations vacated nationwide, not just as to the parties in the case.
103. When do the revisions to the Department’s FFCRA paid leave regulations become effective? (added 09/11/2020)
September 16, 2020. The revised explanations and regulatory text become effective immediately upon publication in the Federal Register on September 16, 2020. This means they are effective from September 16, 2020 through the expiration of the FFCRA’s paid leave provisions on December 31, 2020.
Update | Families First Coronavirus Response Act: Added Questions and Answers 104-105 (updated on 12/31/2020): https://www.dol.gov/agencies/whd/pandemic/ffcra-questions
104. 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)
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).
105. 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)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.
