As we discussed in previous posts, the Families First Coronavirus Response Act (FFCRA) requires private employers with less than 500 employees and certain public employers to provide employees with 80 hours of paid sick leave for specified reasons related to COVID-19 and up to 10 weeks of paid, job-protected leave for employees who have worked for their employer for at least 30 days and who are unable to work due to the need to care for a son or daughter whose school is closed or the unavailability of a child care provider due to COVID-19. Since the FFCRA’s effective date of April 1, 2020, the Department of Labor (DOL) has provided multiple questions and answers and regulations, all with the understanding the bill expires 11:59 PM on December 31, 2020.
Until now, employers have been left to guess if the FFCRA would extend into the new year or if Congress would pass a new piece of legislation redefining COVID relief in the workplace. On Monday, December 21, 2020, lawmakers decided they would not extend the FFCRA but instead will allow employers to decide if their company will continue to provide paid leave and, therefore, be eligible for the payroll tax credit. As currently drafted, this option is available until March 31, 2021.
Changes to paid sick leave and paid family leave
What should employers consider immediately?
(While it is unclear if it would be lawful to provide one type of leave and not the other, we anticipate the DOL may provide additional guidance, and we believe the best practice would be to provide both paid sick leave and paid family leave or neither.)
(While the legislation does not currently provide a notice requirement, we can anticipate the DOL will provide guidance or additional posters reflecting an employer’s decision related to this legislation.)
Employers should still consider the DOL’s past guidance on the FFCRA while determining how to comply with the new legislation until additional information is released. Additionally, it is critical that employers update their existing FFCRA leave forms to take into consideration the changes. Since employees are not eligible to receive more leave than was provided through the FFCRA, employers must ensure they keep accurate records to reflect leave provided for all employees.
NOTE: At the time of publishing this update, the White House indicated it may have some concerns with the language. If and when this legislation becomes law, we will send out another client alert.