Emergency FFCRA leave provisions extended

Attorney Q&A with Kirk Turner

The Families First Coronavirus Response Act (FFCRA) was enacted last April to help reduce the impact of the pandemic on individuals and businesses alike. Among its provisions were mandates for emergency paid sick leave and emergency Family and Medical Leave. Those mandates officially expired December 31, 2020.

Bipartisan legislation was passed and signed into law December 27, 2020, for a second round of pandemic stimulus as well as extending some FFCRA provisions. It allows FFCRA-covered employers to voluntarily extend two types of emergency paid leaves through March 31st. McAfee & Taft employment lawyer Kirk Turner answers the most common questions about this extension.

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Transcript
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Q: The FFCRA officially expired on December 31 of last year. Does this mean employers no longer have to provide COVID-related paid leave?

A: That’s correct, there is no longer a requirement to provide FFCRA paid leave for COVID-19 related reasons. However, the employer can voluntarily choose between now and March 31st to extend that leave. And during that time they can receive the tax credits that are available if they are providing paid leave to their employees between January one and March 31st.

Q: What must employers do to receive the tax credit?

A: In order to get the tax credit they have to do exactly the same things they had to do prior to December 31st. So they have to make sure that the employee is eligible. They have to make sure that they’ve kept records. As it relates to entitlement to FFCRA leave. They have to comply with the payroll tax withholding guidelines. So, if they’re gonna seek a tax credit, then they have to do everything they were required to do under the FFCRA.

Q: Can an employer pick and choose what types of paid leave it will provide?

A: Yes, because it’s voluntary. You could choose, we’re only gonna provide paid leave to people with a COVID-19 related illness. But we’re no longer going to provide a payment for childcare. For example, that might be where you pick and choose certain categories. You still have to comply if you’re going to get a tax credit. But if you said, we’re only gonna do it for illness or any other category of the FFCRA, because it’s purely voluntary, you can pick and choose which of those you want to apply.

Q: Is an employee who has already taken FFCRA paid leave eligible for additional leave through March 31?

A: If an employee has not used all of the leave to which they were entitled up through December 31st, then they could be allowed to take additional leave for which they would be compensated. So if for hypothetically, if they’d use 40 of their 80 hours, then you could allow them to use the other 40 and be reimbursed for it. But if they’ve already used their 80 hours then there is not a second bite at the apple. They don’t get additional leave. The 80 hours is the maximum amount of time that the employee could receive under the FFCRA. The reason for the limitation on that is because the employer can’t get a tax credit beyond the 80 hours that’s provided in paid leave to the employee. So if they don’t want the tax credit the employer can do whatever they want. The issue though is they can’t get more than 80 hours of reimbursement for the tax credit or whatever those limitations are under the FFCRA.

Q: If an employer chooses to provide paid leave, what should it be doing now?

A: Well, you certainly need to revise your FFCRA policy to expand it to March 31st and then you need to make sure you’re clear as it relates to eligibility, as it relates to what leaves are available and what types of leaves and how much time people have available and how they get that leave. And then what’s required from a documentation standpoint as it relates to do we’d have to have provide medical information? Do we have to provide information for childcare closing or school closing? What information do we have to have? Whatever is in your FFCRA policy, we just want to extend that through March 31st.

Q: What are other considerations for employers?

A: Well, whenever we have employees going on medical leaves of absence whether it’s specifically for their own health condition or to care for somebody who has a health condition then we always have ADA implications as it relates to reasonable accommodations. So we’re always need to be thinking about that whether this is a disability or not, and going through that process interactively, and then FMLA, even though this expanded the FMLA, as it relates to childcare the FMLA is still in effect for covered employers. So anybody who’s got more than 50 employees within a 75 mile radius, then those employers are required to continue to comply with the FMLA. And this might be when somebody is going off on a leave of absence, might be a protected leave under the FMLA even though it would be unpaid in that context it’s still need to be thinking about FMLA considerations, for sure.

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This Attorney Q&A has been provided for information of clients and friends of McAfee & Taft A Professional Corporation. It does not provide legal advice, and it is not intended to create a lawyer-client relationship. Readers should not act upon the information in this Q&A without seeking professional counsel.