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Just the FAQs (Frequently Asked Questions) – Extension of FFCRA Benefits into 2021

On December 27, 2020, President Trump signed into law the Consolidated Appropriations Act, 2021, better known as the $900 billion COVID-19 rescue stimulus bill. Among other provisions, the final bill modifies the paid leave provided by the Family First Coronavirus Response Act ("FFCRA"). Under the FFCRA, certain employers were required to provide Emergency Paid Sick Leave (“EPSL”) and Expanded Family Medical Leave (“EFMLA”) through December 31, 2020.

OlenderFeldman LLP has prepared this FAQ to further explain what this means for employers as we enter 2021:

Q. Are employers required to extend FFCRA paid leave into 2021?

A. No. Mandatory FFCRA Leave expired on December 31, 2020 and the newly enacted stimulus bill does not extend the requirement that employers provide paid leave beyond that date.

However, an employer may continue to provide FFCRA leave (both EPSL and EFMLA) until March 31, 2021 (for the same reasons as available under the original statute), and claim the payroll tax credit associated with this leave. But, doing so is voluntary. Plus, an employee that has already exhausted his or her bank of FFCRA leave does not get it replenished.

Note that after March 31, 2021 (without further extensions), any COVID-19-related leave provided by employers will be solely at the employer's expense.

Q. Does the voluntary extension increase the amount of paid sick leave available to employees?

A.  This extension does not create a new bucket of FFCRA leave for employees on January 1, 2021, but instead merely extends the payroll tax credit for an employee's use of the original allotment of FFCRA leave through March 31, 2021, if an employer voluntarily extends the leave.

If an employer opts to voluntarily continue to provide FFCRA leave through March 31, 2021, employees still only have available the original 80 hours of EPSL allotted as of April 1, 2020. Thus, as it relates to FFCRA paid sick leave, from January 1 - March 31, 2021, employers are only entitled to claim the payroll tax credit for leaves taken from that original allotment of paid sick leave.

Q.  Does the FFCRA extension increase the amount of paid family leave available to employees?

A.  Unlike the 80 hours of EPSL, paid EFMLA, however, may work differently. Because the FFCRA's paid EFMLA provisions (which only apply to COVID-19 childcare-related absences) operate as an amendment to the FMLA itself, it is possible, depending on the way an employer calculates its FMLA leave year (e.g., rolling vs. calendar year basis), that employees will qualify for a new bucket of FMLA leave on January 1, 2021. If this is the case, then employees could have available an additional 12 weeks of FMLA under the FFCRA, with the final 10 weeks paid, beginning on January 1, 2021, to use through March 31, 2021. Ultimately, the Department of Labor will need to further address this issue in the new year.

Q. Are employers still required to pay employees for any unpaid FFCRA leave taken between April 1, 2020 and December 31, 2020?

A.  Yes. If you have not yet paid employees who took FFCRA leave in 2020, you will be required to do so. Even if the employer does not elect to extend the FFCRA leave into 2021, they must compensate the employee for eligible FFCRA leave taken in 2020.

Q.  Will the new administration make FFCRA paid leave mandatory again?

A.  It is possible that the incoming Biden administration may bring back FFCRA legislation that will require employers to provide mandatory paid leave past March 31, 2021. All Employers and particularly those that plan on providing FFCRA leave in Q1 2021 should prepare now for a possible extension of FFCRA benefits past Q1. We will update this FAQ as soon as additional information becomes available.

Further information or guidance concerning the new law can be obtained from OlenderFeldman LLP. Please contact Howard Matalon () or Alex Umansky () in the Employment Practices and Employment Litigation group.