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FFCRA and Multiemployer Welfare Fund Rights to Tax Credit


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I looked at the DOL FAQs regarding the Coronavirus and Employers obligated to contribute to a multiemployer welfare fund. I note that the FAQs, especially Q&As 35 - 37 permit the payment of Emergency Family and Medical Leave benefits and Emergency Paid Sick Leave benefits to be provided "by other means, provided they are consistent with your bargaining obligations and collective bargaining agreement." I can foresee that most funds would want to negotiate the bargaining agreement so that they provide the expanded paid leave benefits from the fund and that the existing paid leave provisions may not be sufficiently broad to apply to these expanded paid leave rights. Assuming that is satisfied, would the employer be precluded from providing such paid leave benefits from its own funds and applying for and retaining the IRS payroll tax credits? Would that be consistent with the employer's bargaining obligations and the collective bargaining agreement? Or would there be an obligation? If it would, would the employer be obligated to either have the fund apply for and retain the tax credits  or would the employer be obligated to pay the credits obtained over to the funds?

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