FFCRA Paid Leave is Ending but COVID-19 Continues: Considerations for Employers Handling COVID-19 Issues in 2021

The Families First Coronavirus Response Act (“FFCRA”), applicable to certain public employers and private employers with fewer than 500 employees, had two major provisions: the Emergency Paid Sick Leave Act (“EPSLA”) and the Emergency Family and Medical Leave Expansion Act (“E-FMLA”). EPSLA leave provided employees up to 10 days/80 hours of paid leave for certain COVID-19 related reasons (i.e., employees under a quarantine order, experiencing symptoms of COVID-19, caring for an individual subject to quarantine, caring for a child whose school or place of care is unavailable due to COVID-19, etc.). E-FMLA provided an additional 10 weeks of family leave paid at two-thirds of an employee’s regular wages to eligible employees to care for a child whose school or place of care was closed or unavailable because of COVID-19.

Employers have grappled with, and employees have benefitted from, these paid leave benefits under the FFCRA since it went into effect on April 1, 2020. The FFCRA, by its own terms, was set to expire on December 31, 2020. While many speculated whether Congress would act to continue the FFCRA into 2021, an appropriations bill signed into law by President Donald Trump on December 27, 2020 (“the Bill”), does not extend the FFCRA mandates. As such, FFCRA paid leave requirements will expire at 11:59 p.m. on December 31, 2020.

This means that if an employee is only a few days or weeks into leave under the FFCRA, the employee’s paid leave entitlement automatically terminates on December 31, 2020, regardless of whether the employee has exhausted or completed his/her full FFCRA leave period. As an example, if an employee who has not used all 80 hours of EPSLA leave requests leave for a covered COVID-19 reason on December 31, 2020, the employee would only receive as many hours of EPSLA paid leave as he or she would have worked before 11:59 p.m. local time on New Year’s Eve.

In addition to the paid leave requirements, the FFCRA’s job protection/restoration provisions also expire on December 31, 2020. Therefore, starting January 1, 2021, an employer may terminate employees who are unwilling or unable to return to work from an FFCRA-covered leave (noting that all termination decisions should still be reviewed for compliance with all potentially applicable federal, state, and local laws).

As a consolation, even though the Bill did not extend the FFCRA, it does extend the time limit for employers to receive tax credits for providing FFCRA leave to their employees through March 31, 2021. The FFCRA tax credits are designed to reimburse employers for things such as the cost of employee wages, health plan expenses, and the employer’s portion of Medicare tax related to wages paid to employees as FFCRA leave. With the extension of these tax credits, many employers may wish to continue their existing FFCRA leave programs and policies through March 31, 2021.

For employers who do not wish to voluntary continue EPSLA or E-FMLA benefits past December 31, 2020, employee leave requests will be subject to federal, state, and local leave laws (such as regular FMLA) and any employer-provided paid time off, sick leave, or other leave policy.

You can review the full text of the December 27, 2020 Bill here. Please check the Stites & Harbison, PLLC COVID-19 Resource Page for additional information. For specific questions, to request additional information about handling employee leave requests, or to request a copy of our template COVID-19 leave request form, please contact one of our employment attorneys.