No Extension of FFCRA Leave into 2021, Sort of
As you know, the FFCRA provided qualifying employees with two different forms of leave.
The first included paid sick leave in two different categories:
- Up to 80 hours of paid sick leave at the employee’s regular rate where an employee cannot work because of quarantine or they experienced COVID-related symptoms and sought a medical diagnosis.
- Up to 80 hours of paid sick leave at two-thirds the regular rate where the employee needs to care for someone subject to quarantine or a child whose school or childcare provider closed due to COVID.
In addition, the FFCRA granted to employees employed for at least 30 days up to an additional 10 weeks of paid expanded FMLA time at two-thirds their regular rate of pay. To qualify, they cannot work due to the need to care for a child whose school or childcare provider closed for a reason related to COVID. Limited to companies employing 500 or fewer employees. In some circumstances, it allowed businesses with fewer than 50 employees to opt out of the leave provisions.
In return, employers with qualifying employees could seek reimbursement for the paid leave through a tax credit. The provisions of the FFCRA expire on December 31, 2020. There has been a lot of speculation recently about whether they would be expanded beyond that date. The stimulus bill passed by Congress and signed by the President does not provide an extension of those paid leave provisions.
The bill provides that employers may voluntarily continue to provide those paid leave benefits beyond December 31. They can continue to receive the tax credit through March 31, 2021, if they do so. The extended tax credits only apply to FFCRA leave that the employee did not already exhaust as of the expiration date. In other words, the extended tax credit does not create any new bucket of leave time.
It only applies to FFCRA leave not already used as of December 31, 2020, but used on or before March 31, 2021. It is not quite as easy as that. Depending on an employer’s FMLA policy, an employee could be entitled to FMLA after the FFCRA expires. In that case, an employee currently out under the FFCRA can take additional leave under FMLA as of January 1.
Also, as you certainly know from our many Zoom sessions, there are other forms of leave in Maine. Federally, like the ADA that may also be applicable. Employers are cautioned against taking job action against an employee who needs to continue to remain out of work after December 31 for COVID-related reasons, without a full assessment of potential leave rights. In addition, further changes could come after the change in administration.