DOL Issues Guidance on the Expired FFCRA

Allen Smith, J.D. By Allen Smith, J.D. January 4, 2021
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Department of Labor headquarters

​Employers are not required to provide Families First Coronavirus Response Act (FFCRA) leave after Dec. 31, 2020, but may voluntarily decide to do so, the U.S. Department of Labor (DOL) announced.

"The Wage and Hour Division is attuned to the critical need for American workers and employers to understand this relief program as they deal with the effects of this crisis on the workplace," said DOL Wage and Hour Division Administrator Cheryl Stanton in a statement released Dec. 31. "The guidance we issued today provides clarity around some of the novel issues that the FFCRA's expiration raises."

We've gathered news on guidance related to the expiration of the FFCRA from the DOL and SHRM Online.

Limited Time Frame for Law's Application

The obligation to provide FFCRA leave applies from the law's effective date of April 1, 2020, through Dec. 31, 2020, the DOL stated. Any change to extend the requirement to provide leave under the FFCRA would require an amendment to the law by Congress, the department observed, but there has been no such amendment.

(DOL FAQ No. 104)

Coronavirus Relief Package Includes Key Workplace Provisions

President Donald Trump signed a bill Dec. 27, 2020, to fund the government and provide economic relief in response to the pandemic, as well as expand the Coronavirus Aid, Relief and Economic Security Act's Paycheck Protection Program. The package also extended the refundable employer payroll tax credit for paid sick and family leave through March 2021, though the FFCRA paid sick and family leave obligations were not extended.

(SHRM Online)

Good-Faith Efforts to Extend Leave

"As of now, there is no requirement to extend leave under the FFCRA into 2021," said Adam Kemper, an attorney with Greenspoon Marder in Fort Lauderdale, Fla. But, he added, "employers should not rush back employees who are ill or who may be a risk for spreading the COVID-19 virus to others, even if it costs the company some money out of pocket." Gus Sandstrom, an attorney with Blank Rome in Philadelphia, said, "Employers should also advise employees as to their options for continued leave, paid or unpaid, beginning Jan. 1." Throughout congressional negotiations on COVID-19 relief proposals, SHRM advocated for a number of workplace priorities, including leave, noting that any extension of the FFCRA leave provisions should continue to provide assistance for employers and employees and avoid any new employer mandates.

(SHRM Online)

[Are you a small business with big legal questions? Check out the new SHRM LegalNetwork.]

Owed FFCRA Leave Must Be Paid

If an employer failed to pay an employee for FFCRA leave taken or requested during the effective period of April 1, 2020, through Dec. 31, 2020, the employee may file a complaint with the DOL so long as he or she does so within two years. There also may be a private right of action for alleged violations. The FFCRA covers businesses with fewer than 500 employees and certain public employers.

(DOL FAQ No. 105)

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