Status of Paid Leave Under the New COVID Legislation
December 22, 2020
Will paid leave provisions under the FFCRA be extended?
The new COVID relief bill was passed by both the House and the Senate on the evening of Monday, December 21, 2020, and is awaiting approval by the President. The question on everyone’s mind has been whether the paid leave provisions under the FFCRA, set to expire on 12/31/2020, will be extended. The answer is yes — sort of.Under the new legislation, FFCRA paid sick leave and paid FMLA leave is no longer required, but employers may choose to voluntarily continue to provide these benefits, and obtain the associated tax credit, through March 31, 2021. This means that mandated paid leave for employers with fewer than 500 employees ends on 12/31/2020. If employers choose to voluntarily continue to provide the paid leave in 2021 (and claim the tax credit), it’s important to note that the bill does not create additional paid sick leave beyond the 80 hours provided for in the initial FFCRA. For example, if an employee has 16 remaining hours out of the 80 hours, those can be taken between 1/1/2021 and 3/31/2021. Although it appears at this time that the paid FMLA hours are likewise not increased from the 10 weeks paid contained in the initial law, it remains to be seen whether FMLA hours can be “restarted” if your regular FMLA resets during this period of time. Hopefully additional guidance on this issue will be coming soon.Finally, it is important to note that the tax credit created in this new legislation is only available for paid leave provided by employers between 1/1/2021 and 3/31/2021. In other words, employers cannot use this credit to retroactively recover for paid leave provided in 2020. Employers should be sure that they are applying for the tax credit during the appropriate time period in which the paid leave is granted.Stay tuned for more guidance on this new legislation as it becomes available.
Terri C. Davis
Terri C. Davis is an Attorney and Senior Vice President at Shuttleworth. She focuses her practice in Employment Law and Litigation, including employment related litigation, commercial litigation, product liability, and the handling of administrative trials, including utilities cases and workers compensation. She advises employers on employment matters, and assists with policy review and development, as well as handling of investigations and complaints, both internal and before civil rights commissions.