By: Sally A. Piefer

December 22, 2020

Last evening the legislature approved a new COVID-19 stimulus/relief bill. The bill is expected to be signed by the President soon.

Many employers have wondered whether the legislature would extend FFCRA leave, specifically the emergency paid sick leave (EPSL) and emergency family and medical leave (EFMLA) provisions as the new year approaches and as COVID-19 cases continue to rise through much of the United States.

As you will recall, the leave provisions of the FFCRA covered all employers with fewer than 500 employees, and provided two buckets of leave:

• EFMLA which provided paid leave for employees who are unable to work (or telework) because they need leave to care for a child (under age 18) if the child’s elementary or secondary school or place of care has been closed or if the child care provider is unavailable because of a public health emergency.
• Emergency Paid Sick Leave provided limited paid sick leave to employees who are unable to work (or telework) because of leave needed for any of the following reasons:

1. 1. 1. 1. The employee is subject to a quarantine or isolation related to COVID-19;
         2. The employee has been advised by a health care provider to self-quarantine due to COVID-19;
         3. The employee is experiencing symptoms of COVID-19 and is seeking a medical diagnosis;
         4. The employee is caring for an individual subject to a state, federal or local quarantine or isolation related to COVID-19;
         5. The employee is caring for their child if the child’s school or place of care has been closed, or the child care provider is unavailable due to COVID-19 precautions; or
         6. The employee is experiencing any other substantially similar conditions specified by the Secretary of HHS in consultation with the Secretary of the Treasury and the Secretary of Labor.

To benefit employers, the FFCRA provided a refundable tax credit equal to 100% of the qualified sick leave wages paid by the employer – subject to the FFCRA’s maximum payments.

Tax Credits Provided for Voluntary Extension of Leave

Although the legislature did not officially extend the leave provisions – meaning the mandatory leave expires on December 31, 2020, employers covered by the FFCRA can voluntarily continue to provide the leave through March 31, 2021 and continue to receive the tax credit. The extension of the tax credit only applies to private employers – no provisions have extended the tax credit to public employers.

The extension of the tax credit also does not mean that an employee who already exhausted their EPSL will get another bank of EPSL. However, as drafted, it would appear that if an employer’s FMLA would restart before March 31, 2021, that employer would have to provide another new bank of EFMLA through March 31, 2021. Hopefully the DOL will soon issue guidance on how the new legislation affects EFMLA.

Employer Next Steps

Employers covered by the FFCRA will need to decide whether they will continue to provide EPSL and EFMLA through March 31, 2021. If you do decide to do so, it would make sense to let your employees know about the leave, and that the extension of leave will expire on March 31, 2021.

We will continue to monitor and provide further updates on COVID-19 developments. If you have questions, please contact Sally Piefer at 414-226-4818 or spiefer@lindner-marsack.com, or contact your regular Lindner & Marsack attorney.