FFCRA Leave Not Currently Mandatory: What Now?

Employment Law


What should employers do now that mandated leave under the federal Families First Coronavirus Relief Act (FFCRA) expired on December 31, 2020?

The answer: It depends.

Enacted last year in response to the COVID-19 pandemic, the FFCRA (which includes the Emergency Paid Sick Leave Act and the Emergency Family and Medical Leave Expansion Act) required employers with fewer than 500 employees to provide paid sick leave and paid Family and Medical Leave Act (FMLA) leave for certain COVID-19-related reasons.

Pursuant to the statute, the leave provisions terminated at the end of 2020. Although Congress considered legislation to renew the FFCRA, the final version did not include provisions requiring additional leave.

Instead, covered employers may voluntarily provide emergency paid sick leave or emergency paid FMLA leave under the updated version of the FFCRA and take the associated payroll tax credit through March 31, 2021.

The expiration of mandatory FFCRA leave doesn’t mean that employers are totally off the hook from providing emergency paid sick leave, however.

State and local jurisdictions—including Colorado, New Jersey and Oregon, along with cities such as Los Angeles and Washington, D.C.—passed analogues to the federal law, enacting new legislation or tweaking existing laws to provide leave for COVID-19-related reasons.

While some of these laws also expired on December 31, 2020, others remain in effect or were renewed.

And the federal law may not be gone forever—President Biden has proposed renewing the emergency paid sick and family medical leave in the FFCRA as part of his American Rescue Plan.

In addition, the American Rescue Plan would expand the definition of covered employers to encompass all private businesses, including those with 500 or more employees, and remove exemptions for those with fewer than 50 employees. The definition of “eligible” employees would also be broadened to cover first responders (a group of workers that employers were permitted to deny leave to under the FFCRA), as would the amount of leave—to more than 14 weeks—through September 30, 2021.

President Biden’s plan would provide FMLA leave for federal employees and raise the maximum paid leave benefit to $1,400 per week.

Why it matters: Employers must determine whether they will provide the now-voluntary emergency paid sick leave under the FFCRA if employees are still eligible, making sure to check whether state and local ordinances may also apply. In addition, the federal requirements may return if President Biden makes progress on his plan to renew—and expand—the FFCRA. Please reach out to your contacts at Manatt or any other member of the team if you wish to discuss this issue in more depth.

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