DOL FFCRA enforcement begins; concurrent application of employer policies and paid leave addressed

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The DOL had delayed the enforcement of FFCRA requirements from March 18 through April 17, 2020.

The temporary period of non-enforcement of paid leave protections under the Families First Coronavirus Response Act (FFCRA) has ended, as the Department of Labor made clear in an April 20 announcement. The DOL’s Wage and Hour Division has also offered clarification around when employers may require employees to run emergency paid sick leave or expanded family and medical leave under the FFCRA concurrently with existing leave under employer policies.

Delayed enforcement. In its periodically updated series of questions and answers on the emergency family leave and emergency paid sick leave under the FFCRA, the DOL advised that it would not bring enforcement actions against employers for violations of the FFCRA occurring within 30 days of the enactment (March 18 through April 17, 2020), provided the employer has made reasonable, good faith efforts to comply with the Act.

However, the DOL reserved its right to exercise enforcement authority for violations during this period where an employer acted willfully, failed to provide a written commitment to future compliance, or failed to remedy a violation upon notification.

April 1 effective date. The FFCRA leave provisions were effective April 1, and so the DOL expected employers to comply with these provisions on the effective date despite the limited stay of enforcement until April 17. Now that the DOL is fully enforcing the FFCRA, it will retroactively enforce violations to April 1, if employers have not remedied them.

Time to get up to speed. During the non-enforcement period, the WHD provided guidance and education about the new law’s requirements to aid American workers and enable covered employers to come into compliance as the nation continues to battle the coronavirus pandemic.

To resolve issues that have arisen with providing FFCRA-required leave, the WHD has explained employers’ obligations and has assisted employers with getting money into the hands of workers. Educational outreach efforts will continue as enforcement begins in order to ensure compliance with the law and to maximize its benefits for workers and employers alike, the DOL said.

More on concurrent leave. The DOL has also provided additional insight in its Q&As about the circumstances under which an employer may require an employee to use existing leave under a company policy concurrently with the new FFCRA leave provisions.

Paid emergency sick leave. Under the FFCRA’s emergency paid sick leave provisions, paid sick leave is in addition to any type of paid or unpaid leave that an employer or a collective bargaining agreement provides; consequently, an employer may not require employer-provided paid leave to run concurrently with emergency paid sick leave.

Paid expanded family and medical leave. On the other hand, employers may require that paid leave available under their own policies to allow employees to care for children because their school or place of care is closed or the child care provider is unavailable for COVID-19-related reasons to run concurrently with the paid expanded family and medical leave provided under the FFCRA (the first 10 days of the 12 weeks allotted under these provisions may be unpaid). Here, the employer must pay the employee’s full pay during the leave until the employee has exhausted available paid leave under the employer’s plan—including vacation and/or personal leave (typically not sick or medical leave).

However, the employer will only be able to get tax credits for wages paid at two-thirds of the employee’s regular rate of pay, up to the daily and aggregate limits of $200 per day or $10,000 in total.

Where the employee exhausts available paid leave under the employer’s plan, but has more paid expanded and medical family leave available, the employee will receive any remaining paid expanded and medical family leave in the amounts and subject to the daily and aggregate limits.

Further, provided both the employer and the employee agree (and subject to federal or state law), paid leave provided by an employer may supplement two-thirds pay for emergency family and medical leave so that the employee may receive the full amount of the employee’s normal compensation.

At the employee’s election. The WHD also explained that an employee may elect, but an employer may not requireit, to take paid emergency sick leave or paid leave under the employer’s plan for the first two weeks of unpaid expanded family and medical leave, but not both. However, where an employee has used some or all paid sick leave available under the FFCRA, any remaining portion of that employee’s unpaid of expanded family and medical leave may be unpaid.

During this period of unpaid expanded family and medical leave, the employee may elect—but the employer may not requireit—to use paid leave under the employer’s policies that would be available to the employee to take in order to care for children because their school or place of care is closed or the child care provider is unavailable due to a COVID-19 related reason concurrently with the unpaid leave.

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