Devine Millimet | NH Law Firm

FFCRA leave is voluntary for employers through March 31, 2021

Margaret "Peg" O'Brien, Esq.

January 11, 2021

The Families First Coronavirus Response Act (FFCRA), passed on March 18, 2020, temporarily mandated paid sick time and paid family leave for COVID-19-related issues for covered employees and employers through December 31, 2020

On December 21, 2020, Congress decided not to extend the mandated FFCRA paid time off obligations beyond December 31, 2020, however, as part of the COVID-19 stimulus bill passed by Congress, employers can voluntarily elect to continue providing paid FFCRA leave benefits with the right to claim the payroll tax credit, which has been extended through March 31, 2021. (See our prior e-alerts on the FFCRA here.)

In accordance with the December congressional amendments, the United States Department of Labor (DOL) has updated its Frequently Asked Questions page regarding FFCRA to address the January 1, 2021 through March 31, 2021 voluntary status of FFCRA by adding two new Q&As (#104, #105).

In #104, the DOL has explained that eligible employees who did not already exhaust their FFCRA leave in 2020 may use FFCRA leave between January 1 through March 31, 2021, on condition that their employer voluntarily decides to provide such FFCRA leave.   If the employer decides not to extend FFCRA benefits beyond December 31, 2020, then the employees are not entitled to use any FFCRA leave from January 1, 2021 through March 31, 2021.  

The DOL also directed employers to the IRS website to review information about claiming the refundable tax credits for qualified paid FFCRA leave  between January 1, 2021 and March 31, 2021.  Please note that employers will not be eligible to receive tax credits for benefits in excess of the statutory limits provided by the FFCRA.  That is, each employee is only eligible to receive up to a maximum of 80 hours of paid sick leave, and a maximum of 10 weeks of paid expanded family and medical leave pursuant to the FFCRA.  If an employee, for example, has already used 80 hours of paid sick leave pursuant to the FFCRA in 2020, then the employee is not eligible for an additional 80 hours of paid FFCRA leave in 2021.

In #105, the DOL explained that, although the FFCRA entitlements expired on December 31, 2020, the DOL retains jurisdiction to enforce the FFCRA with respect to complaints about employer violations during the period April 1, 2020 through December 31, 2020. The DOL underscored that the statute of limitations for filing an FFCRA violation is two years from the date of the alleged violation, or three years in the case of alleged willful violations.

Employer Takeaways:  The decision whether to offer FFCRA leave from January 1, 2021 through March 31, 2021 is at an employer’s sole discretion: an employer can either choose to provide the leave benefit, or choose not to provide the leave benefit.  If an employer plans to extend this voluntary benefit, it should communicate this decision with employees and continue to collect the required documentation to support the tax credit.  (See DOL FAQ #15)

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