Employers Resource Association has created a decision tree to walk through whether or not Families First Coronavirus Response Act benefits are available under a particular situation.
Under the Families First Coronavirus Response Act (FFCRA), those who work for employers with 500 or fewer employees may be entitled to up to 12 weeks of paid (up to $200/day) childcare leave. While some employees may have exhausted all 12 weeks of eligible leave during the spring, those who still have leave remaining may use it if their child’s school remains closed (or partially closed) to in-person learning this fall. Partially closed may include a hybrid where the child attends some days ‘live’ and other days virtual.
In a recent update to their FAQs, the Department of Labor (DOL) has indicated that an employee’s ability to use FFCRA leave last spring will not necessarily affect whether they can use such leave this fall. Additionally, an employer should not assume that the same child care schedule or arrangement that worked in the spring will work moving forward. As the DOL acknowledges, circumstances may change, including employees realizing they are not able to effectively provide childcare and work remotely at the same time. The DOL’s guidance reminds us this is not a sprint but a marathon and that employers will need to take changes under consideration.
The DOL also clarified that if a childcare provider or school is open to some students but not to an employee’s child (due to capacity or other COVID-related limitations), the school or child care provider is still considered “closed” to the student who is unable to attend. This means that an employee may be entitled to FFCRA leave to care for a child whose school utilizes a fully remote or “hybrid” model of in-person and distance learning. And similar to the regular Family and Medical Leave Act (FMLA), the FFCRA permits parents to use paid childcare leave intermittently in any amount, whether it be days at a time or only a few hours per day.
NEW: Update on Consolidated Appropriations Act of 2021
President Trump signed the Consolidated Appropriations Act of 2021 on December 27, 2020, which includes several provisions that employers can choose to implement that would allow changes to the following benefits without the immediate need for plan document amendments:
- Health Flexible Spending Accounts
- Dependent Care Spending Accounts
- Voluntary Extension Of Emergency Paid Sick Leave (EPSL)
- Voluntary Extension Of Extended FMLA (EFMLA) For Daycare/School Closures
Health Flexible Spending and Dependent Care Spending
Employers with Health Flexible Spending and Dependent Care Spending would be allowed, but not required to permit the following:
- Carryover of unused funds from plan year ending in 2020 to plan year ending in 2021.
- Carryover of unused funds from plan year ending in 2021 to plan year ending in 2022.
- Grace period for plan year ending in 2020 or 2021 may be extended to 12 months after the end of the plan year. (This refers to the Extended grace period some plans elect which is usually 21/2 months).
- Allow an employee who ceases participation in the plan during the calendar year 2020 or 2021 to continue to receive reimbursements from unused benefits or contributions through the end of the plan year their participation ceased.
- Employees may make prospective election changes in 2021 without incurring a Section 125 status event.
Dependent Care Spending Accounts Only
- Allows the substitution of “age 14” for the “age 13” in the definition of “Dependent” for purposes of the Dependent Care Assistance Program (DCAP).
- This applies to employees enrolled in the DCAP where the end of the regular enrollment period was on or before January 31, 2020, has one or more dependents who attain the age of 13 during the plan year and had an unused balance for that plan year.
Plan Amendments must be completed by the end of the first calendar year beginning after the end of the plan year in which the amendment is effective (e.g., calendar 2020 plan amendments must be adopted on or before December 31, 2021) provided the plan operates consistent with the terms of the amendment beginning on its effective date.
How to Make Changes
If you would like to adopt any of these changes, please contact your Account Manager to elect the provision/provisions best suited for your plan. A signed amendment is not required for any plan year ending in 2020 until December 31, 2021. CDB will administer the plan based on the client’s direction prior to the signing of the amendment.
Voluntary Extension of Emergency Paid Sick Leave & Extended FMLA
This Act has also extended the tax credits for the Emergency Paid Sick Leave and Extended FMLA. The mandate effective April 1, 2020 that required the adoption of this paid leave for employers under 500 employees will expire December 31, 2020. There is no obligation for employers to extend paid sick leave under FFCRA. However, employers that voluntarily offer the emergency paid sick leave after December 31, 2020 and emergency FMLA related to school or daycare closures will be eligible to receive the tax credit reimbursements for leave taken prior to March 31, 2021.
There is nothing in the law that provides additional paid leave time to employees. The Families First Coronavirus Response Act offered 10 paid workdays for symptoms, testing and quarantine due to COVIsD-19 and a total of 12 weeks of Extended paid FMLA to care for children effected by daycare or school closures. This leave runs concurrently with traditional FMLA.
If Custom Design Benefits currently provides EPSL or EFMLA administration for your company and you would like to elect to extend our services please contact our FMLA department at 888-661-3652.