U.S. DEPT. OF LABOR ISSUES NEW GUIDANCE
Recently the U.S. Dept. of Labor issued additional FAQ’s to address the issue of the expiration of these benefits. The updated FAQ’s pertaining to the expiration of the FFCRA are stated below:
104: I was eligible for leave under the FFCRA in 2020 but I did not use any leave. Am I still entitled to take paid sick or expanded family and medical leave after December 31, 2020? (added 12/31/2020).
Your employer is not required to provide you with FFCRA leave after December 31, 2020, but your employer may voluntarily decide to provide you such leave. The obligation to provide FFCRA leave applies from the law’s effective date of April 1, 2020, through December 31, 2020. Any change to extend the requirement to provide leave under the FFCRA would require an amendment to the statute by Congress. The Consolidated Appropriations Act, 2021, extended employer tax credits for paid sick leave and expanded family and medical leave voluntarily provided to employees until March 31, 2021. However, this Act did not extend an eligible employee’s entitlement to FFCRA leave beyond December 31, 2020.
Employers with questions about claiming the refundable tax credits for qualified leave wages should consult with the IRS. Information can be found on the IRS website (http://www.irs.gov/coronavirus/new-employer-tax-credits).
105: I used 6 weeks of FFCRA leave between April 1, 2020, and December 31, 2020, because my childcare provider was unavailable due to COVID-19. My employer allowed me to take time off but did not pay me for my last two weeks of FFCRA leave. Is my employer required to pay me for my last two weeks if the FFCRA has expired? (added 12/31/2020).
Yes. WHD will enforce the FFCRA for leave taken or requested during the effective period of April 1, 2020, through December 31, 2020, for complaints made within the statute of limitations. The statute of limitations for both the paid sick leave and expanded family and medical leave provisions of the FFCRA is two years from the date of the alleged violation (or three years in cases involving alleged willful violations). Therefore, if your employer failed to pay you as required by the FFCRA for your leave that occurred before December 31, 2020, you may contact the WHD about filing a complaint as long as you do so within two years of the last action you believe to be in violation of the FFCRA. You may also have a private right of action for alleged violations.
The full FAQ’s can be found here:https://www.dol.gov/agencies/whd/pandemic/ffcra-questions
OTHER BENEFITS & LEAVE LAWS TO CONSIDER
While the FFCRA paid benefits have expired, employers should consider whether their employees may be entitled to additional paid and/or unpaid time off benefits for certain COVID-19 related reasons.
California Supplemental Paid Sick leave
As with FFCRA, the California Supplemental Paid Sick Leave (CSPSL) expired on December 31, 2020. New leaves may not begin after December 31st; however, if an employee had already started receiving CSPSL prior to January 1, 2021 the employee may continue to take the leave they are currently on. So if an employee began their CSPSL on or before December 31st and remained off work due to a requirement to self-isolate or quarantine into 2021, they would continue to receive their benefit.
Exclusion Pay Under Cal OSHA’S Emergency Temporary Standards (ETS)
In November 2020, Cal-OSHA issued their Emergency Temporary Standards (ETS) which provided that essentially all California employers must provide what is called “exclusion pay” to employees who have been “excluded” from work for certain COVID-19-related reasons. Currently there have been lawsuits filed to challenge Cal-OSHA’s authority to mandate exclusion pay but until such time as a decision is issued, employers should comply.
Specifically, employees must be excluded from work who (1) test positive for COVID-19, or (2) have experienced a COVID-19 exposure in the workplace. If an employee is “able and available to work” and the exposure is work-related, the ETS requires the employer to continue to provide the employee’s pay and benefits while excluding them from the workplace.
Cal/OSHA’s guidance on the “exclusion pay” provides that an employer may require the employee to exhaust paid sick leave benefits before providing exclusion pay and may offset exclusion pay by the amount an employee receives in other benefit payments such as state disability insurance or workers compensation.
Cal-OSHA’s FAQ (https://www.dir.ca.gov/dosh/coronavirus/COVID19FAQs.html) provides the following:
Q. Must an employer pay an employee while the employee is excluded from work?
A. If the employee is able and available to work, the employer must continue to provide the employee’s pay and benefits. An employer may require the employee to exhaust paid sick leave benefits before providing exclusion pay and may offset payments by the amount an employee receives in other benefit payments. (Please refer to the Labor Commissioner’s COVID-19 Guidance and Resources for information on paid sick leave requirements.). These obligations do not apply if an employer establishes the employee’s exposure was not work-related.
City of Los Angeles Supplemental Paid Sick Leave
The City of Los Angeles’ supplemental leave order requires employers with either 500 or more employees in the City of Los Angeles or 2,000 or more employees in the United States to provide paid leave. Los Angeles’ supplemental leave will continue to remain in effect “until two calendar weeks after the expiration of the COVID-19 local emergency period.”
Employers should continue to monitor any federal, state, or local legislative developments with regard to COVID-19 paid leave entitlements.