Employers May Choose to Extend Paid FFCRA Leave through March 31, 2021

The Families First Coronavirus Response Act (“FFCRA” or the “Act”) paid leave mandates are set to expire on December 31, 2020.  As explained in our March 20, 2020 Act Now Advisory, the FFCRA requires employers with fewer than 500 employees to provide up to 80 hours of Emergency Paid Sick Leave and up to 12 weeks of Public Health Emergency Leave due to COVID-19-related reasons.  The FFRCA also provides employers with a payroll tax credit equal to 100 percent of the cost of the paid leave taken by employees in accordance with the Act.

With COVID-19 continuing to surge across the country, many had expected that Congress and the Trump Administration would extend the FFCRA leave mandates into 2021.  Instead, the stimulus bill signed into law by President Trump on December 27, 2020 (the “Law”), permits covered employers to voluntarily extend the paid leave benefits, and extends the tax credits for leave provided through March 31, 2021.  Thus, employers may choose, but are not required, to provide FFCRA leave through March 31, 2021.  The Law does not increase the amount of leave time available to employees, nor does it increase the maximum tax credit available to employers for the cost of FFCRA leave.  Thus, employees who already exhausted their 80 hours of Emergency Paid Sick Leave or 12 weeks Public Health Emergency Leave will not be eligible for more paid FFCRA leave, and employers will not be entitled to take a second payroll tax credit should it provide additional time off to an employee who has exhausted their leave.

At this time, covered employers must decide whether to extend the period for employees to use any remaining paid leave benefits, and should update their policies to reflect their decision.  Employers with a represented workforce who are contemplating extending these benefits for employees should keep in mind their obligation to bargain with the employees’ union.  It is also advisable to memorialize any agreement in writing.

In addition to any benefits that may be extended under the FFCRA, employees may be eligible for COVID-19 leave and/or paid sick leave mandated by state and local jurisdictions.  Moreover, employees may be eligible for leave as a reasonable accommodation under the Americans with Disabilities Act and state and local anti-discrimination laws.  Again, however, provision of such additional leave would not be entitled to a payroll tax credit.

Finally, employers should continue to monitor developments regarding the FFCRA as the Department of Labor may issue further guidance and there may be additional legislation under the Biden Administration.