Congress Declines to Extend Mandatory FFCRA Leave Into 2021

By: Sheila Gladstone, Sarah Glaser, and Emily Linn
Lloyd Gosselink Rochelle & Townsend P.C.’s Employment Law Practice Group

Last night, Congress voted to approve a sweeping COVID‑19 relief bill providing benefits to numerous segments of the country.  Many have asked if an extension of the Families First Coronavirus Response Act (the “FFCRA,” which is set to expire by its own terms on December 31, 2020) would be included in the legislation.  As a reminder, the FFCRA mandates that all private employers with fewer than 500 employees, and most public employers provide paid sick leave for certain COVID‑19 related absences and extends the Family and Medical Leave Act (“FMLA”) to provide employees paid leave to care for a child when their school or regular care provider is closed due to COVID‑19.

The bill approved last night by Congress encourages, but does not require, covered employers to continue to provide emergency paid sick leave and emergency paid FMLA Leave under the FFCRA on a voluntary basis.  The bill also extends the right for those employers who are eligible to take the tax credit associated with FFCRA leave to continue to receive tax credits through March 31, 2021.

In other words, FFCRA leave is no longer required, but if private employers who were covered by the FFCRA voluntarily provide FFCRA leave benefits, they are eligible to take the tax credit for the leave.  Public employers, however, are not eligible for the FFCRA tax credit.  Additionally, public employers may not offer such voluntary paid leave to employees without first putting a policy in place, to avoid such leave being considered an improper gift of public funds.  Accordingly, all public employers who wish to continue offering a version of FFCRA leave (or any alternative paid leave solution) to their employees must ensure they have a written policy in place authorizing the leave.

For private employers who wish to continue to offer FFCRA leave through March 31 and obtain the tax credit, we anticipate the Department of Labor will issue guidance in the near future addressing the intricacies of continuing portions of the Act into the first quarter of 2021.  For example, the new bill merely extends the right to the FFCRA tax credit through the end of March and is silent on how to treat employees’ FFCRA “leave banks”.  It does not appear that employers can take a tax credit for a new bank of leave if the employee has already used their allotted FFCRA leave.  On the other hand, employers who run Family Medical Leave on a calendar year basis could conceivably offer another 12 weeks of paid EFMLA leave.

Additionally, it is unclear whether we can expect additional COVID-19 relief from the next Congress and the new Administration.  President‑Elect Biden has called for additional relief in the New Year. In any event, this extended FFCRA tax credit expires at the end of March, so generally speaking, we can expect there will be updates in the early part of next year. 

This article was prepared by Lloyd Gosselink’s Employment Law Practice Group:  Sheila Gladstone, Sarah Glaser, and Emily Linn.  If you would like more information, please contact Sheila (sgladstone@lglawfirm.com or 512.970.5815), Sarah (sglaser@lglawfirm.com or 512.221.6585), or Emily (elinn@lglawfirm.com or 214.755.9433).

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