FFCRA Leave Not Extended by Congressional Stimulus Bill, Tax Credit for Optional FFCRA Leave Remains…Assuming the Bill is Signed

Congress’ Consolidated Appropriations Act, 2021 – passed December 21, 2020 – does not extend requirements for employers to provide emergency paid sick leave or emergency paid family and medical leave under the Families First Coronavirus Response Act (FFCRA) after its original December 31, 2020 expiration date. There was much talk of extending the FFCRA’s leave provisions, but such proposals did not make it into the final bill.

The new Appropriations Act did provide employers the ability to utilize the FFCRA tax credit until March 31, 2021, if they voluntarily continue to provide FFCRA-qualifying paid leave benefits to their employees. However, if employers do so, the new law does not expand the amount of leave available to employees under the FFCRA. Thus, employers who voluntarily offer FFCRA paid leave benefits next year cannot claim the tax credit for employees who have already used all available FFCRA leave to which they were entitled. Employers should consult with counsel if they choose to extend FFCRA leave voluntarily next year to determine how to address Family and Medical Leave Act issues that may be implicated as a result of such a decision.

As of the date of this article, it is unclear whether the President will sign the current version of the Appropriations Act. If he does not sign it, then the FFCRA will expire on December 31, 2020 by its own terms; and there will be no tax credits available for employers who choose to voluntarily provide FFCRA paid leave benefits in 2021. Stay tuned.

Regardless of what occurs, employers should be mindful of state laws and local ordinances that provide similar kinds of paid leave to employees for reasons related to COVID-19. Such states include Colorado, New Jersey, New York, Oregon, the District of Columbia and California (including Emeryville, Long Beach, Los Angeles, Oakland, Sacramento, San Diego, San Francisco, San Jose, San Mateo and Santa Rosa), among others. Although some of these laws expire at the end of this year, others do not.

The St. Louis employment attorneys at McMahon Berger have been representing employers across the country in labor and employment matters for over sixty years and are available to discuss these issues and others. As always, the foregoing is for informational purposes only and does not constitute legal advice regarding any particular situation as every situation must be evaluated on its own facts. The choice of a lawyer is an important decision and should not be based solely on advertisements.