On December 21, 2020, the U.S. Congress overwhelmingly passed H.R.133: Consolidated Appropriations Act, 2021 (H.R.133), a significant government funding bill which provides appropriations for certain departments of the federal government as well as economic stimulus provisions due to the ongoing coronavirus pandemic. One of the main areas of speculation stemming from Congress’ consideration of H.R.133 was whether the new legislation would extend the mandatory leave provisions of the Families First Coronavirus Response Act (FFCRA) beyond the December 31, 2020, expiration date.

Background

On April 1, 2020, the U.S. Department of Labor announced benefits to employees and relief to employers offered by the Emergency Paid Sick Leave Act and Emergency Family and Medical Leave Expansion Act, both part of the FFCRA. To deal with the effects of COVID-19 in the workplace, the FFCRA requires certain employers to provide employees with paid sick leave or expanded family and medical leave for specified reasons related to COVID-19.

The FFCRA reimburses private employers, with less than 500 employees, with tax credits for the cost of providing employees with emergency paid sick leave to eligible employees for COVID-19-related reasons. The reasons may include:

• the employee or someone the employee is caring for is subject to a government quarantine order or has been advised by a healthcare provider to self-quarantine;
• the employee is experiencing COVID-19-related symptoms and is seeking medical attention; or
• the employee is caring for his or her son or daughter whose school or place of care is closed or whose childcare provider is unavailable for reasons related to COVID-19.

The FFCRA leave mandates are set to expire on December 31, 2020.

New Legislation

With the passage of H.R.133, Congress did not extend the mandatory leave provisions which will indeed expire on December 31, 2020. So as of January 1, 2021, employers are no longer required to provide FFCRA leave. However, the new legislation provides that those employers who voluntarily provide leave in line with the provisions of the FFCRA can continue to receive a federal tax credit for leave taken through March 31, 2021.

Takeaways

• Employers are no longer required to provide FFCRA leave to employees from January 1, 2021, forward.
• Employers who are covered by the FFCRA can voluntarily provide FFCRA leave to employees.
• Employers who voluntarily provide FFCRA leave can claim a tax credit to cover the cost of providing FFCRA leave to eligible employees through March 31, 2021.
• Congress may look at mandatory sick pay leave for COVID-19 and/or all illnesses after President-elect Biden’s inauguration.
• Some states and local governments have mandatory sick leave providing paid leave benefits, specifically for COVID-19 and/or generally for all illnesses. Employers should be mindful of where the employee works before making a final decision and consult counsel as to state and local variation.