The Families First Coronavirus Response Act (FFRCA) ends by its terms on December 31, 2020. Many of us anticipated that the federal government would extend the FFCRA’s mandatory leave provisions into at least early 2021 when the vaccines become more widely available to the general public. The second stimulus bill, which is currently on President Trump’s desk for signature, does not include an extension of the FFCRA’s mandatory leave provisions. Instead, the bill calls for an extension of the tax credits for paid sick and family leave until March 31, 2021. In other words, employers are no longer required to provide FFCRA leave after December 31, 2020, but if an employer decides to continue to provide paid leave under terms of the FFCRA in 2021, it may continue to take the available tax credits through March 31, 2021.
Employers should make a plan on how they are going to proceed in 2021 as they have several choices, such as:
- End all leave effective December 31, 2020. Employers are encouraged to communicate to all employees, including those currently on leave, of its decision to end the leave entitlement in advance of this deadline;
- Continue to allow employees to use any unused, available FFCRA leave through some time in 2021. Providing another round of 10 days/12 weeks of paid leave is not encouraged as it is unlikely to qualify for the tax credits. Instead, employees should only be entitled to any FFCRA leave they had remaining as of December 31, 2020;
- Only allow the continuation of Emergency Paid Sick Leave into 2021 so employees who contract or are exposed to the virus will not be at work but discontinue the entitlement to the much longer paid family leave.
Employers who choose to end the leave entitlement on December 31, 2020, or later are reminded that some employees may still be entitled to leave (paid or unpaid) under other laws such as the regular Family and Medical Leave Act (FMLA) or state and local laws or company policy.
While President Trump is expected to sign this bill into law, the possibility of some additional changes still exist. In addition, it is currently unknown whether the new administration will push for any further extension of the FFCRA leave provisions (or its tax credits) once President-Elect Biden takes office.
If you have any questions regarding this Alert, please contact the author, Rachel Ullrich, partner in our Dallas office at rullrich@fordharrison.com, or any member of our Coronavirus Taskforce. Of course, you can also contact the FordHarrison attorney with whom you usually work.