Section 286 of the new stimulus legislation amends the FFCRA in several significant ways:

• The mandatory elements of the FFCRA expire on December 31, 2020, as in the original legislation, but employers that have been subject to the FFCRA may voluntarily elect to extend until March 31, 2021, the period in which employees may take FFCRA leave – and for which employers may claim the FFCRA tax credit.
• Employers must not take adverse action against an employee who seeks to take leave as provided for in the FFCRA.
• The elective extension of FFCRA leave does not increase the FFCRA leave available to an employee, nor does it increase the maximum payroll tax credit available to the employer. The legislation merely extends the deadline for use of partially paid FFCRA leave by three months for employees of covered employers who opt to offer FFCRA leave during the extended period.

Employers should consider now whether to offer the extended eligibility period for FFCRA leave to their employees and to notify their employees of the employer’s policy on this issue. The Department of Labor or the Internal Revenue Service may issue further guidance about the effects of the new legislation. Until there is guidance expressly permitting case-by-case decisions, however, employers would be prudent to decide on a categorical basis whether to make FFCRA leave available in the first quarter of 2021.

Employers must also bear in mind that, even though the FFCRA mandate is expiring, state and local paid leave mandates may continue. New York’s paid sick leave law for COVID-related absences, for example, does not have a calendar-year expiration date but rather remains in force for the duration of the pandemic. Under the federal Americans with Disabilities Act and state and local human rights laws, employers may also have to grant leave or telework approval to employees with disabilities that place them at higher risk of serious complications from COVID-19. Moreover, as explained in this June 11, 2020, client alert, deciding whether to mandate that employees return to onsite work requires careful consideration of the risks and the employer’s obligations under federal occupational safety and health laws. In short, employers should proceed carefully and consult with legal counsel before moving to terminate any employee’s employment as a result of the expiration of mandatory FFCRA leave.