The DOL’s Up to date Steerage on the Expired FFCRA—It Will Nonetheless Implement Pre-December 31, 2020 FFCRA Violations

In our late December article entitled, “It’s official, the FFCRA is expiring this year. Tax Credit for Employers Granting Voluntary Paid Vacation for COVID-19 Absences, ”FFCRA Mandatory Paid Vacation, expired December 31, 2020; Under the federal government’s new Business Cycle Act (The Consolidated Appropriations Act, 2021, referred to as the “Act”), insured employers can continue to voluntarily grant paid sick leave or paid FMLA leave under the FFCRA starting January 1, 2021 and take the tax credit associated with these payments for vacation until March 31, 2021.

As we noted in our previous article, the law doesn’t seem to grant employees additional paid vacation. It only allows them to use any remaining FFCRA paid vacation they had through March 31, 2021 instead of December 31, 2020. We hypothesized that this would also apply to FMLA Emergency Leave even if an employer’s FMLA policy is reset every calendar year On December 31, 2020, the Department of Labor changed its FFCRA Q&A guidelines. Ultimately, however, the guidelines fell short on holidays after December 31, largely reiterating what the stimulus plan says: “The Consolidated Funds Act of 2021 extended the employer’s tax credits for paid sick leave and extended families and voluntary medical leave for Workers until March 31, 2021. However, this Act did not extend an eligible worker’s right to FFCRA leave beyond December 31, 2020. “(Q.104). However, the guidelines made it clear that even if an employee did not take any or all of the FFCRA vacation they were entitled to before December 31, 2020, they will no longer be entitled to use it as of January 1, 2021 . The guidelines then referred employers to the previous IRS guidelines, which were last updated in November 2020, for questions about eligibility of the refundable tax credits.

Hopefully there will be more instructions on this again. But for now, let’s stick with our previous hypotheses: There is no new bucket of vacation for tax credits. For example, if an employee took all 80 hours of their paid emergency leave in the past year, they will not be entitled to more paid emergency leave as of January 1, and their employer will not be able to receive a tax credit for additional paid emergency leave made available to that employee in 2021. However, the judgment as to whether the paid family leave and medical leave can be reset has not yet been finalized.

The Department of Labor has also attached an FAQ stating that if the complaints are filed within the statute of limitations – two years from the date, the FFCRA will be taken or requested for leave for the period from April 1, 2020 to December 31, 2020 the alleged breach (or three years in cases of alleged willful breach). (Q.105). This means that if an employer has not properly paid an employee for the FFCRA time they were entitled to by December 31, 2020, an employee can file a complaint with the Payroll Department within two (or possibly) , or otherwise allegedly violated the FFCRA three) years of the last action believed to be in violation of the FFCRA. There can also be a private right to sue for alleged violations. Therefore, employers ensure that an employee’s ability to request enforcement or non-compliance with previous FFCRA vacation mandates has not expired. In other words, you won’t be off the hook for FFCRA violations before December 31, 2020, and you will still have to pay your employees for the FFCRA vacation they took before the mandate ended.

As a reminder, employers should continue to review and comply with their state’s COVID-19 vacation laws, if any.