The Families First Coronavirus Response Act that provided paid leave for many COVID impacted workers—and federal funding to reimburse employers for the costs of paid leave since April 1, 2020—is set to expire  Dec. 31, 2020.

Businesses have been anxiously waiting to see if it will be extended.

Late Dec. 21, Congress answered the question with a 5,593-page, $900 billion stimulus package, and the word is that it’s in there—sort of.

A press release from House Speaker Nancy Pelosi and Senate Democratic Leader Chuck Schumer said the legislation “supports paid sick leave.”

“The agreement provides a tax credit to support employers offering paid sick leave, based on the Families First framework,” the statement read.

This appears to provide additional federal funding through payroll tax credits by which employers may be reimbursed for the cost of 80 hours of emergency paid sick leave and the 10 weeks of extended paid FMLA the act allowed.

Mandate?

But it leaves open the status of the law’s mandate that paid leave be provided.

It’s hard to find definitive answers to such questions in the legislation’s fine print.

Attorney Jeff Nowak, of the labor and employment firm Littler Mendelson, writes in his FMLA Insights blog that the stimulus package contains these key elements:

  • Mandated FFCRA leave ends on Dec. 31, 2020
  • As of Jan. 1, 2021, covered employers may voluntarily provide emergency paid sick leave or emergency paid FMLA leave under FFCRA and take the tax credit associated with this leave
  • The tax credit may only be taken for leave through March 31, 2021

In other words, FFCRA leave is no longer required.

Voluntary Benefits

But if covered employers voluntarily provide these leave benefits through March 31, 2021, they are eligible to take the tax credit for providing leave benefits.

It is not clear if the stimulus package extends mandated leave or benefits beyond what was required in the original FFCRA.

It's unclear whether the stimulus bill extends mandated leave or benefits beyond what was required in the original FFCRA.

The FFCRA clearly stated that the 80 hours of emergency paid sick leave for an employee’s own incapacity or the need to quarantine or employee leave to care for a family member with COVID-19, or the added 10 weeks of expanded paid FMLA for employee leave to care for a child whose school or daycare was closed due to COVID, were one-time benefit mandates, available from April 1 to Dec. 31, 2020. 

Unlike the classic federal FMLA that resets every 12 months, or the classic Connecticut FMLA that resets every 24 months, the stimulus package extension of the law does not appear to refill paid time off buckets.

Payroll Tax Credit

CBIA HR counsel Mark Soycher said it seems logical that the stimulus extension provides a basis for employers to use the payroll tax credit to recover the costs of paid leave voluntarily provided to employees for time they had left over from 2020, if taken before March 31, 2021.  

But the stimulus package leaves open the question of whether employers may voluntarily provide additional paid leave for COVID-impacted employees beyond the FFCRA amounts which an employee had exhausted during 2020.

Regrettably, Soycher said, this fuzzy analysis is the best we can offer at this point.

There may be more details in coming days as the legislative dust settles.

Or, considering the incoming Biden administration’s likely leanings on such issues, and depending on the Jan. 5, 2021 Georgia vote that will determine control of the U.S. Senate, Congress and the Biden Department of Labor may take up the issue in the coming months to clarify and/or extend the law.

So with more to come, maybe, this, at a minimum, is a small extension of support to businesses, workers, parents, and schools struggling with continuing COVID-related disruptions to personal health, workplace productivity, family security, and the education of our children.


HR problems? Email or call Mark Soycher at the HR Hotline (860.244.1900) | @HRHotline