COVID19 Key Updates (12/23/2020)

Congress did not extend the mandated Families First Coronavirus Response Act (FFCRA) as part of the $900 billion Consolidated Appropriations Act of 2021 (a.k.a. COVID19 Recue Stimulus), but did approve an extension of tax credits for paid sick and family leave under the FFCRA, which otherwise would have expired on December 31, 2020. Although, President Trump has stated his dissatisfaction with numerous aspects of this legislation, it is either expected that he will sign it into law, or it should likely have sufficient congressional votes to override a veto.

In summary, as of January 1, 2021, these are the provisions as related to the FFCRA:

• Mandatory FFCRA Leave will still expire on December 31, 2020.
• A covered employer (as defined by same reasons in the original statue) may voluntarily continue to provide emergency paid sick leave or emergency paid FMLA Leave under FFCRA (100% pay for qualifying reasons #1 - #3 and 2/3’s pay for qualifying reasons #4 and #6¹) and claim the payroll tax credit associated with this leave.
• FFCRA paid leave tax credits may only be claimed for leave taken by employees through March 31, 2021. After March 31, 2021 (unless extended again), any COVID-19-related paid leave will be provided solely at the employer's expense.
• This extension does not appear to create a new allotment of FFCRA paid leave for employees, it only extends the payroll tax credit for an employee's use of the originally allowed allotment of FFCRA paid leave through March 31, 2021. Thus, if a covered employer does voluntarily extend FFCRA paid leave, employees will still only have available the original maximum of 80 hours of FFCRA paid sick leave allotted to them on April 1, 2020.
• This legislations impact on the FFCRA's paid FMLA provisions that apply to COVID-19 childcare-related absences (2/3’s pay for qualifying reasons #4¹) are a little less clear and are still being interpreted, but our current guidance is that although it does not appear to be required to be extended or granted by the employer beyond December 31, 2020, if it does so the employer may continue to claim paid leave related tax credits for an employee up to the originally allotted 12 weeks granted on April 1, 2020 through March 31, 2021.

Assuming this bill will be signed into law, FFCRA covered employers should begin to assess their choices and the planned actions they will take beginning January 1, 2021 which should include:

• Review how much paid time has been used by each employee as of the end of 2020.
• Determine if you will voluntarily continue to provide FFCRA paid leave and take the eligible tax credits. You should assess the impact in doing so or not doing so will have on your business and your employees.
• If you do not voluntarily extend FFCRA paid leave, how will you handle employee time off for the COVID19 related reasons that will no longer have FFCRA mandated protections.    

As this bill is not been passed into law, there is a possibility of that any or all aspects as related to the FFCRA are still subject to change. The above guidance is being provided on preliminary basis to allow and prompt employers to begin planning how they will handle ongoing COVID19 related issues requiring employees to take time off that will unquestionably extend well beyond December 31, 2020.

¹ https://www.dol.gov/sites/dolgov/files/WHD/posters/FFCRA_Poster_WH1422_Non-Federal.pdf

The Aliniti COVID19 Blog updates are intended as an employer reference guide only and not intended to serve as either legal or medical advice.  Any legal questions should be directed to legal counsel and medical questions should be directed to an appropriate medical provider.