When the Families First Coronavirus Response Act was enacted in March, it had a built-in expiration date of December 31, 2020. Given that the pandemic is still ongoing, the stimulus bill passed by Congress on December 22, and signed into law by President Trump on December 27, 2020, amends the FFCRA to permit employers to continue to claim a tax credit to cover the cost of providing FFCRA-covered leave if they voluntarily allow employees to continue using leave mandated by the FFCRA until March 31, 2021.
The amendment to the FFCRA has two important components. First, and most notably, the amendment does not provide employees with any additional leave beyond that originally provided under the FFCRA. In other words, if an employee has already used their full balance of available leave under the FFCRA, they are not entitled to take any additional leave under the FFCRA. Second, the extension is voluntary for employers. To ensure that employees know whether they will be entitled to continue to use their FFCRA leave balances, employers should inform their employees as to whether they are voluntarily allowing employees to continue to use FFCRA leave after January 1 as soon as possible.
If an employer does not voluntarily extend the deadline for employees, or employees have already exhausted their available leave under the FFCRA, employers will still have to decide how to address employee leave requests after January 1, 2021. Assuming that the need for leave complies with appropriate use of sick or other family leave under local law or the employer’s policy, then employees will likely use paid sick leave if they are unable to work due to their own illness or a family member’s illness. However, if the employee is unable to work due to exposure to someone who has been diagnosed with COVID-19, it is not clear that they would be entitled to use paid sick leave and any leave policy would be subject to the employer’s discretion. Similarly, if an employee is unable to report to work in-person due to school or daycare closures, the availability of leave or a modified schedule for this reason is likely to be subject to the employers’ discretion. Employers will also need to evaluate whether unpaid leave, whether as an ADA accommodation or under the Family and Medical Leave Act, is available to cover employee absences for COVID-19-related leave.
If you have questions about how your business should address leave related to COVID-19 after the expiration of the FFCRA, please contact our Employment & Labor Law practice group.