Earlier this month, the DOL and EEOC issued informal and formal guidance on a number of issues. The DOL issued new FAQ on federal tax credits available to employers until March 31 who voluntarily provide FFRA leave. The EEOC issued a formal opinion letter that non-U.S. citizens who are employed outside the U.S. need not be included in the notices required to be provided by U.S. employers by the OWBPA. Other opinion letters were also issued (as well as proposed regulations on voluntary wellness plans under GINA and the ADA), but it remains to be seen how long those actions will survive the change in administrations. President Biden has frozen all non-final regulations and agency actions for 60 days while his new appointees review and re-consider them. Finally, the EEOC approved (by a divided Commission) a final regulation revising the EEOC’s conciliation procedures.
On New Year’s Eve, the DOL added new material to its COVID FAQs. The mandatory medical and family leaves of absence created under the FFCRA expired on December 31. However, the latest stimulus package passed before Christmas created tax credits to employers who voluntarily provide such leave to qualified employees until March 31, 2021. Employees who exhausted their FFCRA leave in 2020 would not be entitled to new leave.
SEC. 286. EXTENSION OF CREDITS FOR PAID SICK AND FAMILY LEAVE. (a) IN GENERAL.—
Sections 7001(g), 7002(e), 7003(g), and 7004(e) of the Families First Coronavirus Response Act are each amended by striking ‘‘December 31, 2020’’ and inserting ‘‘March 31, 2021’’. (b) COORDINATION WITH TERMINATION OF MANDATE.— (1) PAYROLL CREDIT FOR PAID SICK LEAVE.—Section 7001(c) of the Families First Coronavirus Response Act is amended by striking ‘‘paid by an employer which’’ and all that follows and inserting ‘‘paid by an employer— ‘‘(1) which are required to be paid by reason of the Emergency Paid Sick Leave Act, or ‘‘(2) both— ‘‘(A) which would be so required to be paid if such Act were applied— ‘‘(i) by substituting ‘March 31, 2021’ for ‘December 31, 2020’ in section 5109 thereof, and ‘‘(ii) without regard to section 5102(b)(3) thereof, and ‘‘(B) with respect to which all requirements of such Act (other than subsections (a) and (b) of section 5105 thereof, and determined by substituting ‘To be compliant with section 5102, an employer may not’ for ‘It shall be unlawful for any employer to’ in section 5104 thereof) which would apply if so required are satisfied.’’
. . . .
(3) PAYROLL CREDIT FOR PAID FAMILY LEAVE.—Section 7003(c) of the Families First Coronavirus Response Act is amended by striking ‘‘paid by an employer which’’ and all that follows and inserting ‘‘paid by an employer— ‘‘(1) which are required to be paid by reason of the Emergency Family and Medical Leave Expansion Act (including the amendments made by such Act), or ‘‘(2) both— ‘‘(A) which would be so required to be paid if section 102(a)(1)(F) of the Family and Medical Leave Act of 1993, as amended by the Emergency Family and Medical Leave Expansion Act, were applied by substituting ‘March 31, 2021’ for ‘December 31, 2020’, and ‘‘(B) with respect to which all requirements of the Family and Medical Leave Act of 1993 (other than section 107 thereof, and determined by substituting ‘To be compliant with section 102(a)(1)(F), an employer may not’ for ‘It shall be unlawful for any employer to’ each place it appears in subsection (a) of section 105 thereof, by substituting ‘made unlawful in this title or described in this section’ for ‘made unlawful by this title’ in paragraph (2) of such subsection, and by substituting ‘To be compliant with section 102(a)(1)(F), an employer may not’ for ‘It shall be unlawful for any person to’ in subsection (b) of such section) which relate to such section 102(a)(1)(F), and which would apply if so required, are satisfied.’’.
. . ..
(5) COORDINATION WITH CERTAIN EMPLOYMENT TAXES.—Section 7005(a) of the Families First Coronavirus Response Act is amended by inserting ‘‘(or, in the case of wages paid after December 31, 2020, and before April 1, 2021, with respect to which a credit is allowed under section 7001 or 7003)’’ before ‘‘shall not be considered’’. (c) EFFECTIVE DATE.—The amendments made by this section shall take effect as if included in the provisions of the Families First Coronavirus Response Act to which they relate.
Q: 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)
A: 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).
Q: 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)
A: 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 U.S. Equal Employment Opportunity Commission (EEOC) announced last week that the Commission approved a formal opinion letter in response to a request asking for clarity regarding whether employees who are not U.S. citizens and work outside of the United States for American employers (or foreign firms controlled by American employers) are required to be included in disclosure requirements pursuant to provisions of the Older Workers Benefit Protection Act (OWBPA), which amended the Age Discrimination in Employment Act of 1967 (ADEA).
The EEOC also announced the approval of a final rule revising the Commission’s informal conciliation procedures once an investigation has found probable cause of discrimination. The regulation was published in the Federal Register last week and is schedule to become effective on February 16, 2021. As explained by the EEOC, fewer than half of the Charges in which probable cause of discrimination is found are resolved through conciliation.
NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.