DOL FAQs Address Expiration of FFCRA Paid Leave Provisions

The DOL has posted new FAQs 104 and 105, addressing the recent expiration of the Families First Coronavirus Response Act (FFCRA) paid leave provisions. As background, the FFCRA required certain employers to provide paid sick leave and emergency childcare leave for specified reasons related to COVID-19 (see our Checkpoint article). That requirement expired on December 31, 2020. As noted in FAQ 104, although the Consolidated Appropriations Act, 2021 (see our Checkpoint article) extended the availability of federal tax credits for employers that voluntarily provide FFCRA leave until March 31, 2021, it did not extend the requirement to provide leave. The new FAQs confirm that employees are not entitled to take or request FFCRA leave after December 31, 2020, but that they have the right to be paid for leave taken or requested during the effective period of April 1, 2020, though December 31, 2020. FAQ 105 notes that the DOL will continue to enforce the FFCRA after its expiration, indicating that employees generally have two years after an alleged violation of the FFCRA to file a complaint with the DOL. The FAQ also points out that employees may have a private right of action against their employer.

EBIA Comment: Employers should ensure that their paid leave policies accurately reflect whether COVID-19-related paid leave will or will not be provided to employees now that the FFCRA requirement has expired. Leave policies should address not only compensation during the leave, but also eligibility and payment of benefits. (For example, the FFCRA required employers to maintain group health plan benefits during COVID-19-related leaves under the same terms as if no leave had been taken, but employers will now have more flexibility.) In addition, employers and their advisors must be mindful of applicable state and local paid leave laws which may require COVID-19-related leave. For more information, see EBIA’s Group Health Plan Mandates manual at Sections XVI.D (“Expanded FMLA Leave for Emergency Childcare”) and XVI.E (“Emergency Paid Sick Time”), and EBIA’s Fringe Benefits manual at Section XXII.G.4 (“Federally Mandated Paid Sick Leave (2020 Only)”).

Contributing Editors: EBIA Staff.