As originally enacted in March 2020, the Families First Coronavirus Relief Act (FFCRA) required employers to provide 10 days of sick leave and up to 10 weeks of family leave for COVID related absences, and provided a payroll tax credit to reimburse employers. (A quick review of the 6 qualifying reasons for the leave, some of which are paid at full pay and others at 2/3 pay, can be found here). Effective January 1, 2021, FFCRA leave is voluntary, not mandatory. As described in more detail below, tax credits remain available to employers who choose to offer this leave through March 31, 2021. The eligibility and documentation requirements for FFCRA leave remain in place.
Importantly, the amount of FFCRA sick leave available to employees also remains unchanged. The FFCRA tax credit is unavailable in 2021 for employees who used the entire 10 days in 2020.
FFCRA family leave (up to 10 weeks to care for a minor child if school or care is closed) appears to operate differently, as it is treated like regular FMLA. So, depending on how an employer calculates its year for FMLA purposes, an employee may be entitled to a new allotment of FFCRA paid family leave in January 2021. As this issue remains a little unclear, we will continue to monitor guidance from the U.S. Department of Labor and provide updates as appropriate. Initial guidance from DOL on this topic is available here.
Keep in mind—the FFCRA is not the end of the leave story. Employers may also be required to provide paid leave under certain sick and safe leave laws, and unpaid leave under the Family Medical Leave Act (FMLA), Americans with Disabilities Act (ADA) or other state or federal statutory obligations.
Meredith S. Campbell
Chair, Employment and Labor Group
Co-Chair, Corporate Investigations, Governance and Risk Management T(301)255-0550, Employment and Labor Group