As we all eagerly anticipate the end of 2020, the end of the year also means the expiration of the mandated leaves under the FFCRA on December 31, 2020. Indeed, as of the evening of December 21, 2020, Congress has voted to hold firm on the FFCRA expiration time table, and President Trump has signed the bill. Yes, it’s expiring.
Despite the fact that the FFCRA is “going away,” at the end of the year, Congress’s Consolidated Appropriations Act of 2021, incentivizes employers to continue to provide the types of paid leave (Emergency Paid Sick Leave (EPSL) and Emergency Family Medical Leave Expansion Act (EFMLEA) leave) available under the FFCRA. This means that, as of January 1, 2021, private employers may voluntarily provide EPSL or EFMLEA leave and take the tax credit associated with these leaves. According to the bill, the tax credit may only be taken for leave through March 31, 2021.
As has been a hallmark of 2020, there are currently more questions than concrete answers under this new program. Nevertheless, here are a few common scenarios that may come up:
- It’s January 1st. My employee has been out of work due to her son’s childcare closure under the EFMLEA since December 1st. Once the FFCRA expires, can I still provide her with EFMLEA leave at two-thirds pay?
Assuming that this employee has been out on EFMLEA leave for 4 weeks already, she would be entitled to 8 more weeks at two-thirds pay at your discretion. In other words, FFCRA leave is no longer required, but if you choose to continue to provide this paid benefit, you are eligible to take the tax credit for the leave. If you choose not to continue the FFCRA benefit, this employee should be given the opportunity to take advantage of any of other employer benefits like PTO or vacation time. Lastly, keep in mind that the regular Family Medical Leave Act (FMLA) would not apply in this instance, because unavailability of childcare is not a “serious health condition” covered by the FMLA. The Department of Labor’s guidance states, “If you take some, but not all 12, workweeks of your expanded family and medical leave by Dec. 31, 2020, you may take the remaining portion of FMLA leave for a serious medical condition, as long as the total time taken does not exceed 12 workweeks in the 12-month period.” (emphasis added).
- My employee already used 80 hours of EPSL because he was seeking a COVID-19 diagnosis and was quarantining in May of 2020. Now, it’s January 4th, and he needs to be out again due to a quarantine mandate after returning from spending the holidays in Florida. What is he entitled to?
Since this employee already exhausted his EPSL leave in 2020, he would not be entitled to a new bank of paid leave now that the FFCRA has expired. If, for example, the employee had only used 40 hours of EPSL in 2020, an employer could – but would not be required to – provide an additional 40 hours of paid sick time for an EPSL-qualifying reason and take the tax credit until March 31, 2021. In this scenario, though, the employee who has to quarantine may be able to utilize any unused vacation or PTO. Since quarantining itself would not qualify as a “serious medical condition” under the FMLA, he is probably not entitled to that leave. Nevertheless, I encourage employers to open the lines of communication regarding whether or not the employee may qualify for FMLA (if, for example, he is caring for someone with a serious health condition) or the Maine FMLA law.
- I cannot afford to extend FFCRA leave any longer beyond January 1, 2021. What are my options?
You are not required to provide paid leave under the FFCRA after December 31, 2020. If you have determined that providing paid leave – even given the tax credits – is not feasible for your company, you should approach employee requests for leave and time off as you would have before the FFCRA. Remember life before March 2020? Take a methodical, case-by-case approach, ask for documentation, seek advice of counsel if necessary, and determine what, if any, benefits or allotments the employees’ need for leave may fall under.
One additional note: the new bill has updated and expended Payroll Protection Plan (PPP) language and provisions. The bill provides $284.5 billion for a second round of PPP loans. Broadly, businesses are eligible for second round PPP loans if they have fewer than 300 employees demonstrate at least a 25% reduction in gross revenues between comparable quarters in 2019 and 2020.
Skelton, Taintor & Abbott will remain on top of these developing employment law issues, especially as the Biden administration takes a swing at things as early as late January. The federal Department of Labor and Internal Revenue Service will likely be issuing guidance in the coming weeks, as well. Stay tuned, and don’t hesitate to reach out!
This article is not legal advice but should be considered as general guidance in the area of employment and corporate law. Amy Dieterich, Jordan Payne Hay, and James F. Pross are employment and labor law attorneys; others at the firm handle business and other matters. Since 1853, Skelton Taintor & Abbott has provided a full range of high-quality legal services to the individuals, companies, and municipalities of Maine. The firm’s main office is located in Auburn and in January 2019, a mid-coast office was opened in Waldoboro.