The U.S. Department of Labor (DOL) closed 2020 by issuing COVID-related guidelines under both the Family and Medical Leave Act (FMLA) and the Families First Coronavirus Response Act (FFCRA).
FMLA guidance
The DOL issued new FMLA guidelines in the form of two “Field Assistance Bulletins” (FAB).[1]A press release notes that the guidelines are part of “DOL’s ongoing efforts to help American workforce through pandemic recovery.”
In FAB 2020-7, the DOL dealt with the provisions for the notification of employers of various federal labor laws.[2] Regarding the required posting of the FMLA general notice, DOL stated that it would consider employing electronic posting to meet posting requirements if: (a) all recruitment and work is done remotely; and (b) the employer publishes the FMLA notice on an internal or external website that is readily available to all employees and applicants. To the extent that an employer has a hybrid workforce (i.e. employees who work remotely and employees who work on-site), DOL encourages employers to use electronic bookings to support their posting requirement of the general FMLA notice to supplement and not to replace.
In FAB 2020-8, DOL announced that it will continue to apply policies previously adopted in response to the telemedicine pandemic and the “face-to-face” aspect of the FMLA definition of a serious health condition. The DOL considers a telemedicine visit to be a “face-to-face” visit as long as the visit: (a) includes an examination, evaluation, or treatment by a healthcare provider, (b) is approved and accepted by state licensing agencies, and (c) is generally conducted through a video conference . It is important that the DOL emphasized that communication methods that do not meet these criteria – “e. For example, a simple phone call, letter, email or text message ”- alone are not enough to meet the requirement of a“ personal ”visit.
FFCRA Q&A.
Given the expiration of employee entitlements to a specific paid vacation under the FFCRA on December 31, 2020, as well as amendments to the FFCRA being passed in late December, employers are granting tax credits that voluntarily grant employees a specific FFCRA vacation until March 31, 2021 , DOL published two new questions and answers (Nos. 104, 105) in the Frequently Asked Questions section of its website.
In # 104, the DOL stated that eligible workers who did not take FFCRA Vacation in 2020 will take FFCRA (Paid Sick or Extended Family and Sick Leave) Vacation between January 1 and March 31, 2021 can, but only if their employer voluntarily decides to grant them leave. If the employer chooses not to extend the FFCRA benefits beyond December 31, 2020, the employee will not be eligible for FFCRA vacation in the new year. The DOL also directed employers to the IRS website to ask questions about how to claim the refundable tax credits for qualified vacation wages between January 1 and March 31, 2021.
In # 105, the DOL stated that although the FFCRA claims expired on December 31st, the DOL continues to be responsible for enforcing the FFCRA regarding complaints of violations by the employer (e.g. failure to provide a paid FFCRA vacation) in the The jurisdiction period is April 1 through December 31, 2020. The DOL noted that the statute of limitations for violations of the FFCRA is two years from the date of the alleged violation or three years for alleged willful violations.
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