As we have discussed in previous posts, the 2020 Families First Coronavirus Response Act (FFCRA) was drafted to provide temporary paid leave benefits due to COVID-19. The benefits extended to employees of U.S. employers with less than 500 employees. While the FFCRA leave benefits expired under the original statute on December 31, 2020, it was extended to March 31, 2021 on December 27, 2020, under the Consolidated Appropriations Act signed by President Trump.

The Department of Labor (DOL) published guidance for employers on December 31, 2020. Continue reading for a breakdown of how your California business should address this update.

Perhaps of most significant note from the new DOL guidance is the notification to all US employers that they are not required to provide FFCRA leave after Dec. 31, 2020, but may do so voluntarily.  In other words, as of January 1st, 2021, FFCRA leave is no longer required, but if covered employers voluntarily provide paid leave through March 31st, they may take the tax credit for the leave. While not eligible for the tax credits, public sector employers would be free to extend the leaves if they wish, or develop their own short term leave provisions for assistance to their employees in COVID-19 related circumstances.

All employers should keep in mind that the relief package does not affect the total amount of leave available (from the effective date of the FFCRA now through March 31, 2021), the qualifying reasons for which employees may take leave, the caps on the amount of pay employees are entitled to receive, or the FFCRA’s documentation requirements. The extension does not create a new surplus of leave time and as a result, is only applicable for employees who did not previously use their available leave under the FFCRA in 2020.

While the language of the statute appears to indicate that this tax credit extension does not provide a new allotment of FFCRA leave to deal with COVID-19 related absences in 2021, if an employer has an FMLA policy that is calculated on a calendar basis which reset on January 1, 2021, the employee may be entitled to a new block of unpaid, job-protected FMLA leave for his or her own serious health condition or to care for a family member. The employer may elect to make that leave paid if it chooses, but the employer would not be entitled to a tax credit for doing so.

For more information on how this new stimulus bill affects your business, contact the experienced employment attorneys at Webb Law Group.