On December 21, 2020, Congress passed the Consolidated Appropriations Act, 2021, which President Trump is expected to sign.  The Act does not extend the Family First Coronavirus Response Act (“FFCRA”).  The FFCRA mandated leave is still set to expire on December 31, 2020. In 2021, covered employers (less than 500 employees) can choose to continue to provide the same paid sick leave and paid family leave, but they are not required to do so. If an employer chooses to extend the leave for their employees, they can still take the tax credit under the FFCRA. Under the Act, employers can provide these benefits and take the tax credit for leave taken through March 31, 2020.

Note: The Act does not provide any new FFCRA leave in 2021.  The 2021 voluntary option only applies to employees who did not use their FFCRA allotment in 2020.  For example, if Sara has 40 hours of FFCRA paid sick leave left as of January 1, 2021, and Sara gets COVID symptoms on January 2 such that she needs leave to stay home and await her test, her employer could either 1) allow Sara to use her remaining 40 hours of paid FFCRA leave and take the tax credit; or 2) inform Sara it is not extending FFCRA and treat her absence in accordance with its current policies.

We expect the Department of Labor to update its website with more guidance for employers and will let you know when we have any further information. Keep in mind, if you choose to extend the FFCRA you should consider doing so for all employees or risk discrimination claims.  If you have a legitimate business reason for extending the FFCRA for a certain group of employees, you should assess the risk with legal counsel.