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Congress Extends FFCRA Paid Leave...Sorta

As I have previously reported, on March 18, 2020, the U.S. Senate approved, and the President signed, the Families First Coronavirus Response Act (FFCRA). As you likely know, the FFCRA provides mandatory paid Family and Medical Leave Act (FMLA) leave and paid sick leave for employees working for employers with fewer than 500 employees impacted by COVID-19. However, as originally passed, FFCRA was set to expire at the end of this year and employees would not be permitted to use FFCRA-related leave after December 31, 2020. While there was much talk in Washington over the past weeks about potentially extending mandatory FFCRA-related leave into 2021, until last night, Congress had not passed any such legislation. And technically, they still haven’t. 

Last night, as part of the latest round of COVID-19 relief, Congress amended the FFCRA and extended the tax credits associated with FFCRA-related leave into 2021. Notably, by only extending the tax credit portion of FFCRA-related leave, Congress essentially removed the mandatory nature of FFCRA-related leave effective January 1, 2021. 

The COVID-19 relief package now heads to President Trump’s desk, who previously indicated that he intended to sign it. However, on the evening of December 22, 2020, President Trump stated he may not sign the relief package.

So you may ask, what does this mean for employers? If you would like to read all 5,593 pages of the relief package, it is available here (if so skip ahead to page 2,033). Lucky for you, I have summarized the key FFCRA-related provisions for employers below:

  • Employers’ obligation to provide FFCRA-related leave ends on December 31, 2020.
  • Beginning on January 1, 2021, covered employers can voluntarily provide FFCRA-related leave to their employees and still receive a tax credit. 
  • Employers can only claim the tax credit for FFCRA leave taken through March 31, 2021.

Basically, as of January 1, 2021, covered employers no longer have to provide FFCRA leave to their employees, but if they choose to do so, they can claim the tax credit for leave taken through March 31, 2021.

Importantly, these amendments do not “reset” the FFCRA leave entitlement buckets for employees. Therefore, if an employee has already taken their 80 hours of emergency paid sick leave, they are not entitled to take additional leave beginning January 1, 2021. However, and while not entirely clear from the bill, if that same employee has already taken their 12 weeks of expanded COVID-related FMLA leave, and their employer’s 12-month FMLA calendar happens to reset, that employee may be entitled to additional expanded COVID-related FMLA leave. However, we will have to see if the DOL or IRS comes out with guidance to provide some clarity to this point.

Our Employment & Employee Relations Practice and COVID-19 Task Force are here to answer any of your questions related to FFCRA or the new COVID-19 relief package and will continue to keep you informed on new developments impacting employers.

Disclaimer: This post does not offer specific legal advice, nor does it create an attorney-client relationship. You should not reach any legal conclusions based on the information contained in this post without first seeking the advice of counsel.

About the Author

David E. Renner is a Principal in the Firm's Employment & Employee Relations and Wage and Hour Practice Groups. He represents and counsels employers in a wide variety of employment matters, including wage and hour audits and class/collective actions, anti-discrimination and equal employment opportunity policies, affirmative action planning, trade secret/restrictive covenants, Office of Federal Contract Compliance Programs (OFCCP) audits and investigations, Title III of the Americans with Disabilities Act (ADA) relating to public accommodations, and labor relations.

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