Sunset on FFCRA: Mandatory Requirements not Renewed for 2021

With the start of a new year, we may all want to forget about all that 2020 imposed upon us, however, employers should continue to stay up-to-date on the status of COVID-19 legislation.  President Donald Trump signed Congress’ second stimulus package, the Consolidated Appropriations Act, 2021 (H.R. 133), on December 27, 2020, but with one key change: Congress declined to extend the required leave mandate of the Family First Coronavirus Response Act (FFCRA), which was set to expire on December 31, 2020.  What does this mean for employers? Starting January 1, 2021, employers are not legally required to provide their employees leave under the FFCRA’s two leave laws.  However, employers may continue to voluntarily provide this leave and thus continue to receive the associated tax credits through March 31, 2021.

A little background on FFCRA leave: Effective April 1, 2020, with the enactment of the FFCRA, Congress passed two emergency leave laws, the Emergency Paid Sick Leave Act (EPSLA) and the Emergency Family and Medical Leave Expansion Act (EFMLEA), both of which provided employees with paid and job-protected leaves of absence for qualifying COVID-19-related reasons up to a certain amount, with corresponding tax credits to employers.  These requirements had a sunset date of December 31, 2020, and in fact they have now expired.  Starting on the first day of the new year, employers may now simply volunteer to continue this leave for their employees for the first calendar quarter of 2021.  Regardless of what route employers choose, they should be aware of the 4-year recordkeeping requirement imposed by the original law to justify taking the tax credits during the mandatory period and during this next voluntary period if the employer so opts. 

Although federal requirements may have lapsed with this sunset provision, employers should be aware of state statutes and local ordinances that may still be applicable.  Although the FFCRA and California’s supplemental paid sick leave (SPSL) legislation expired on December 31, it is important to note that California workers taking SPSL as of December 31, 2020, may continue to take the leave they are currently on even if the entitlement extends past December 31, 2020.  In addition, the following is a list of some supplemental leave extensions into 2021 for various California localities:

  • Specifically, the City and County of San Francisco’s supplemental paid sick leave, already twice extended, was further pushed into February of 2021.  San Mateo County extended its supplemental paid sick leave ordinance applicable to the unincorporated areas of the county to June 30, 2021.  The County and City of Sacramento have each extended their supplemental paid sick leave ordinances until March 31, 2021.
  • San Jose has not set a specific extension date but has promised to extend its supplemental paid sick leave into the new year and will apply any extension retroactively to January 1, 2021.
  •  Some paid COVID-19 leave legislation can be extended as long as the necessary action is taken such as in unincorporated areas in Los Angeles County and the city of Oakland.
  • Some localities’ paid COVID-19 leave legislation have no set expiration date, but extension hinges on recurring progress reports as to the success and continued necessity of the benefit such as in the city of Long Beach.

If your employees took FFCRA leave prior to December 31, 2020, they would not qualify for further leave after January 1, 2021 if you choose to extend the program.  If you have questions about the risks and benefits of extending FFRCA to your workers, contact the experts at McKague Rosasco LLP. 

Disclaimer:  The information provided on this website does not, and is not intended to, constitute legal advice; instead, all information, content, and materials available on this site are for general information purpose only.  Information on this website may not constitute the most up-to-date legal or other information.  You should always consult an experienced attorney if you have any questions about your business, policies, or your particular circumstances. 

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