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 was paid sick leave in two different categories: 1) up to 80 hours of paid sick leave at the employee’s regular rate where an employee is unable to work because of quarantine and/or the employee is experiencing COVID-related symptoms and seeking a medical diagnosis; or 2) up to 80 hours of paid sick leave at two-thirds the regular rate where the employee is needed to care for someone subject to quarantine or care for a child whose school or child care provider is closed due to COVID.  In addition, the FFCRA granted to employees who had been employed for at least 30 days up to an additional 10 weeks of paid expanded FMLA time at two-thirds the employee’s regular rate of pay where the employee is unable to work due to the need to care for a child whose school or child care provider is closed or unavailable for reason related to COVID.  The leave was limited to companies employing 500 or fewer employees and, in some circumstances, 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 for the cost of the leave.

The provisions of the FFCRA expire on December 31, 2020.   There has been a lot of speculation recently about whether those provisions would be expanded beyond that date.  We now know from the stimulus bill passed by Congress and signed by the President that it does not provide an extension of those paid leave provisions.

The bill does, however, provide that employers may voluntarily continue to provide those paid leave benefits beyond December 31, and will continue to receive the tax credit through March 31, 2021 if they do so.   It should be noted that the extended tax credits are only applicable to FFCRA leave that the employee had not already exhausted as of the expiration date on December 31.  In other words, the extended tax credit does not create any new bucket of leave time; it only applies to FFCRA leave that has not already been used as of December 31, 2020 but is used on or before March 31, 2021.

It is not quite as easy as that, though.  Depending on an employer’s FMLA policy, it is possible that an employee could be entitled to a new bucket of regular FMLA after the FFCRA expires on December 31.   In that case, an employee currently out under the FFCRA may be able to take additional leave under the regular FMLA as of January 1.  Also, as you certainly know from our many Zoom sessions, there are other forms of leave in Maine (and 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, it is entirely possible that further changes will come after the change in administration.

Anne-Marie L. Storey, Attorney at Law, Rudman Winchell
Anne-Marie Storey, Esq
Rudman Winchell