Employment Law Alert – Possible Extension/Expansion of Mandatory Paid FFCRA Leave

By: Celia J. Collins

Congress allowed mandatory FFCRA leave to expire on December 31, 2020 but extended the payroll tax credits for employers covered by the Act who voluntarily continued providing the leave in compliance with the language of the FFCRA through March 30, 2021. One component of Biden’s American Rescue Plan is to re-institute and extend mandatory paid sick leave and emergency FMLA under the FFCRA until September 30, 2021. He would also propose expanding it to cover all employers including those with more than 500 employees. Pursuant to the proposal, employers with less than 500 employees would continue to be eligible for the payroll tax credit to cover FFCRA leave paid. Employers with more than 500 would not be entitled to the credit. Unlike the 2020 Act, state and local governmental employers would be entitled to the credit. The leave would be for the same COVID related absences as last year’s Act, but would also cover absences to obtain a vaccine or recover from symptoms from the vaccine. The new proposal would not allow employers to exempt health care workers and first responders from eligibility for the leave. It would also remove the allowed exemption for certain employers with less than 50 employees. There is already talk of splitting up the parts of the Biden plan and considering them in separate components. It is likely that this proposal would be in early consideration by Congress. Whether or not it passes or in what final form it might pass remains to be seen. If it does pass expect a very short time between the passage and effective date – last year it was less than 2 weeks.

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