Employment Law Update

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Mandatory FFCRA Leave Sunsets Soon, But Tax Credits for Voluntary Leave for Employees Extended

On December 27, 2020, the President signed a new stimulus bill — the Consolidated Appropriations Act, 2021 (CCA) — in response to the ongoing COVID-19 pandemic.

Congress’ first COVID relief effort, the Families First Coronavirus Response Act (FFCRA), created two new paid leave entitlements for the employees of most companies employing fewer than 500 employees. Under the Emergency Family and Medical Leave Expansion Act (eFMLA), covered employers are required to provide up to 12 weeks of paid leave due to an employee's need to care for their son or daughter when the child's school or child care is closed or unavailable due to COVID-19. Under the Emergency Paid Sick Leave (EPSL) Act, covered employers are required to provide employees with up to two weeks (80 hours) of paid leave for a qualifying reason related to COVID-19.

Both FFCRA paid leave entitlements are set to expire December 31, 2020. Employers that were required to provide paid leave under the FFCRA are able to claim a payroll tax credit equal to 100% of the leave paid up to the limits set by the law.

Under the new stimulus bill, mandated FFCRA leave will still end December 31, 2020. However, starting January 1, 2021, covered employers that voluntarily provide paid eFMLA or EPSL may continue to seek the tax credits provided by the FFCRA for leave taken by eligible employees through March 31, 2021.

The new law does not make any substantive changes to the FFCRA leave entitlements and, unless the U.S. Department of Labor provides guidance to the contrary, employers should assume that the CCA does not enlarge or renew the leave available to employees under the FFCRA. 

An employee who has exhausted his or her FFCRA leave is not entitled to a new 80-hour complement of EPSL and/or 12 weeks of eFMLA leave. By the same token, employers cannot seek a tax credit for leave given beyond the leave entitlements under the FFCRA.

Finally, although providing FFCRA leave beyond the mandate’s expiration on December 31, 2020, is voluntary, employers are still bound to comply with other laws, such as the traditional provisions of the Family and Medical Leave Act, the Americans with Disabilities Act, Maryland Health Working Families Act (Sick and Safe Leave), and other federal, state and local laws under which employees may have rights arising out of the impact of COVID-19 on their ability to work.

If you have any questions about leave under the FFCRA or other coronavirus-related employment issues, contact Charles R. Bacharach, Theodore P. Stein and James D. Handley.

 

Charles R. Bacharach
410-576-4169 • cbacharach@gfrlaw.com

 

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