On December 27, 2020, after months of negotiations, Congress passed and the President signed The Coronavirus Response and Relief Supplemental Applications Act, a 5,593-page appropriations bill which provides several forms of stimulus related to COVID-19. Many employers are wondering what effect the new law has on the paid leave provisions of the Families First Coronavirus Response Act (“FFCRA”).

Here is what employers need to know:

  • Mandatory paid sick and FMLA leave still expires on December 31, 2020.
  • From January 1, 2021 to March 31, 2021 (Q1 2021), paid sick and FMLA leave is voluntary. Employers can still get the payroll tax credit associated with this leave through March 31, 2021.
  • After March 31, 2021, employers can choose to provide paid COVID-19-related leave at their own expense, but cannot claim a payroll tax credit for this leave.
  • Employees do not get additional time added to their 80 hours of paid sick leave granted under the FFCRA.

Example 1: An employee contracted COVID-19 in 2020 and used the full 80 hours of paid sick leave. In January of 2021, the employee’s spouse contracts COVID-19. The employer is not required to provide any more paid sick leave to the employee. The employer can choose to provide additional paid sick leave but cannot claim a payroll tax credit for it.

Example 2: An employee uses one week of paid sick leave in 2020 to care for a child whose regular childcare provider is unavailable due to COVID-19. The employee contracts COVID-19 in February of 2021. The employer may, but need not, provide the employee with an additional week of paid sick leave. The employer can claim a payroll tax credit for the additional week of paid sick leave.

  • Paid FMLA leave works a bit differently. Because FMLA leave recycles every 12 months and paid FMLA leave under the FFCRA follows the procedures set forth in the FMLA, employees may be entitled to a new category of FMLA leave (for COVID-19 childcare-related reasons) starting January 1, 2021, depending on how the employer calculates its FMLA leave year.

Example: An employer’s FMLA leave year begins on January 1 and the employer elects to continue offering paid FMLA leave through 3/31/2021. An employee used 12 weeks of FMLA leave for COVID-19 childcare-related reasons in 2020, 10 of which were paid pursuant to the FFCRA. The employee would be entitled to additional paid FMLA leave for COVID-19 childcare-related reasons in the first quarter of 2021.

Despite the fact that the new appropriations bill does not require additional paid leave, employers should carefully consider whether providing it voluntarily in 2021 works best for its organization and employees. In addition, employers must apply their paid leave policy to all employees in a uniform manner to avoid claims of discrimination.

The full text of the appropriations bill is available at https://rules.house.gov/sites/democrats.rules.house.gov/files/BILLS-116HR133SA-RCP-116-68.pdf.

If you have any questions about paid leave, please contact Jarad Lucan or Sarah Westby.

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Photo of Jarad M. Lucan Jarad M. Lucan

Jarad is chair of Shipman’s Employment and Labor Practice Group, where he practices on behalf of both public and private sector clients.  Jarad has successfully represented employers in grievance arbitration matters, prohibited practice proceedings before the State Board of Labor Relations, and unfair…

Jarad is chair of Shipman’s Employment and Labor Practice Group, where he practices on behalf of both public and private sector clients.  Jarad has successfully represented employers in grievance arbitration matters, prohibited practice proceedings before the State Board of Labor Relations, and unfair labor practice proceedings before the National Labor Relations Board.  He has also represented employers in cases involving claims of discrimination and retaliation before the Commission on Human Rights and Opportunities, the Equal Employment Opportunity Commission and State and Federal Courts.

Photo of Sarah A. Westby Sarah A. Westby

Sarah is Co-Chair of Shipman’s Cannabis Team and a member of our Employment and Labor Practice Group. She counsels clients on a wide variety of employment matters, including discrimination, medical leave, sexual harassment, compensation, termination, severance, vaccination and COVID-19 protocols, and workplace safety. …

Sarah is Co-Chair of Shipman’s Cannabis Team and a member of our Employment and Labor Practice Group. She counsels clients on a wide variety of employment matters, including discrimination, medical leave, sexual harassment, compensation, termination, severance, vaccination and COVID-19 protocols, and workplace safety. Sarah advises on formation and management of a cannabis business, interpretation of state and federal cannabis laws, social equity qualifications and partnerships, business-related disputes, employment matters and contracts.