Currently, the FFCRA is set to expire on December 31, 2020, and has not yet been extended. An individual who is currently on FFCRA paid leave as of December 31, 2020, and who has not exhausted said leave, will not be able to continue their leave into 2021. In other words, December 31 appears to be a hard stop.
As background, the FFCRA provides for temporary paid leave provisions – including emergency paid sick leave (EPSL) and expanded FMLA leave (EFMLA) – for specific circumstances related to COVID-19. To review, to qualify for EPSL, an employee must be unable to work or telework because the employee:
- Is subject to a federal, state or local quarantine or isolation order related to COVID-19;
- Has been advised by a healthcare provider to self-quarantine related to COVID-19;
- Is experiencing COVID-19 symptoms and is seeking a medical diagnosis;
- Is caring for an individual subject to an order described in item one or self-quarantine as described in item two;
- Is caring for a child whose school or place of care is closed (or childcare provider is unavailable) for reasons related to COVID-19; or
- Is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services, in consultation with the Secretaries of Labor and Treasury.
In order to qualify for EFMLA, an employee must have been employed for 30 calendar days immediately prior to the day the employee’s leave would begin and they must be unable to work or telework due to a need to care for their son or daughter under 18 years of age whose school or place of care has closed, or whose childcare provider is unavailable, for reasons related to COVID-19, among other requirements.
These FFCRA provisions apply to private employers with fewer than 500 employees and public employers of any size, and provide up to 80 hours of EPSL and 10 out of 12 weeks of paid EFMLA for qualified employees. Additionally, employers who provide such leave are eligible for a federal tax credit. Note that the tax credit expires at the end of the year too.
With the FFCRA expiration quickly approaching, the following example illustrates how FFCRA paid leave can be impacted:
Tracy qualifies for both EPSL and EFMLA under the FFCRA because she is unable to work (or telework) due to a need to care for her children whose school is closed for reasons related to COVID-19. She qualifies for leave beginning December 7, 2020. The 80 hours of EPSL will expire on December 18, 2020. Although 10 additional weeks are permitted for EFMLA, Tracy’s FFCRA paid leave will end on December 31, 2020 (using less than two weeks of the benefit) because the FFCRA is set to expire at that time.
Importantly, many states have enacted their own COVID-19-related leave laws, which may provide for leaves into 2021, but they would not carry the federal tax credit. As a result, any related leave provided may be at employer cost.
Employers administering paid leave under the FFCRA should be mindful of the approaching expiration date and communicate with employees, especially if the expiration impacts the length of their leave. It remains to be seen whether Congress will extend the FFCRA beyond the end of the year; if they do, we will report that in Compliance Corner.