Which applies – FFCRA or Expanded Family and Medical Leave?
Question
Can we provide emergency paid sick leave under the FFCRA but not the expanded family and medical leave?
Answer
The federal Families First Coronavirus Response Act (FFCRA), which did entitle employees to paid sick leave if they were unable to work or telework for certain, specific COVID-19-related reasons, expired at the end of 2020 and Congress did not take measures to extend it.
This means that the law is no longer in effect and that as of January 1, 2021, employers once covered by the Act (i.e., those with fewer than 500 employees) are no longer required to provide the FFCRA's paid time off benefits to employees who might otherwise have qualified for them in 2020 (but any employees eligible for these benefits through 12/31/2020 should have been paid in accordance with the law through that date).
That said, the Consolidated Appropriations Act that was passed into law in late 2020 did include a provision for employers to continue to provide FFCRA benefits if they so chose, and to be eligible through March 31, 2021 for the same type of payroll tax credit as applied when the Act was in effect if they did so (but only for those employees who did not otherwise exhaust FFCRA benefits in 2020).
If a company wishes to voluntarily continue to offer FFCRA benefits to employees in 2021 (again, this is not required by law), as noted, it can do so. The employer would do well to establish a clear written policy to this effect to ensure employees are aware of their entitlement(s), if any.
As a best practice, if an employer decides to voluntarily continue to provide the emergency paid sick leave (EPSL) portion of the FFCRA (up to two weeks or 80 hours, whichever is less), the employer should do so for all five qualifying leave reasons under the FFCRA, including caring for a child whose school or place of care was closed (or whose caregiver is unavailable) due to COVID-19, so as to avoid any risk of discrimination concerns.
If, however, an employee seeks additional time off beyond two weeks, thus implicating the ten additional weeks previously afforded as expanded family and medical leave (EFMLA) under the FFCRA, we are not aware of any specific prohibition on declining EFMLA while granting EPSL. Indeed, EFMLA may require the employer to provide more time off than it would under EPSL, and this may result in a larger impact on its operations.
Note that if the employer decides to voluntarily grant EFMLA for one employee, it should do so for all such employees.
Also, note that depending on the facts, the employer will still want to provide time off or otherwise exclude an employee who is confirmed or suspected to have COVID-19 or who has been exposed to COVID-19 for workplace health and safety purposes (whether paid or unpaid), regardless of FFCRA availability.
We recommend consultation with a tax professional if the employer will provide FFCRA benefits this year to ensure the employer can secure the tax credits that remain available through the end of the first quarter. For additional information, including a link to IRS guidance, please see question 104 under Families First Coronavirus Act: Questions and Answers.
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