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Since April 1, 2020, private employers with less than 500 employees have been required, under the Families First Coronavirus Response Act (FFCRA), to provide Emergency Paid Sick Leave (EPSL) and Emergency Family and Medical Leave (EFMLA) to their employees under certain circumstances relating to COVID-19. See our FFCRA FAQs.

The FFCRA expired on December 31, 2020; however, Section 286 of the new Coronavirus relief bill, C.A.A. 2021, allows employers to continue receiving tax credits until March 31, 2021 if they voluntarily choose to allow their employees to use any remaining EPSL or EFMLA leave early during that period.

Thus, employers covered by the FFCRA may voluntarily decide to provide employees with unused FFCRA leave from January 1, 2021 through March 31, 2021, but are not required to do so.  Moreover, C.A.A. 2021 does not provide employees with additional leave. Instead, it simply allows employers to claim a tax credit if they choose to permit their employees to take any unused EPSL or EFMLA leave through March 31, 2021.

Considerations for Extending EPSL

Extending EPSL is fairly straightforward. In 2020, full-time employees were entitled to a maximum of 80 hours of EPSL and part-time employees were entitled to a number of hours equal to the number of hours that the employee normally worked over a two-week period. If any of this time is still remaining in 2021, and an employer decides to extend EPSL into the new year, the employer can receive a tax credit for any remaining EPSL leave used through March 31, 2021.

Considerations for Extending EFMLA Leave

Extending EFMLA leave may not be as straightforward. The FFCRA provided eligible employees with 12 weeks of EFMLA but did not extend the federal cap of 12 weeks of total FMLA leave per year. Accordingly, if eligible employers were already providing regular FMLA leave to their employees, then employees qualifying for EFMLA could not take more than a total of 12 weeks of FMLA leave (including COVID-19 qualifying EFMLA leave) during the 12-month period the employer uses for calculating annual FMLA leave entitlements.

For employers who look back 12 months when calculating FMLA leave entitlement, the extension of EFMLA leave eligibility through March 31, 2021 should not present issues, as eligible employees will simply be able to use whatever EFMLA leave that they did not use in 2020 (subject to the 12-week cap).

However, if an employer calculates annual FMLA leave entitlements based on a calendar year, and the available total 12 weeks of FMLA leave reset January 1, 2021, then it seems likely an employee’s unused EFMLA leave can be used through March 31, 2021 (and the employer could claim a tax credit for such leave) without regard to other FMLA leave used in 2020. For example, if an employee used the full 12 weeks of FMLA leave in 2020 (six weeks of EFMLA and six weeks of regular FMLA), that would have prevented the employee from using their remaining six weeks of EFMLA leave in 2020. However, for employers that choose to extend EFMLA for their employees through March 31, 2021, and calculate annual FMLA leave entitlements based on the calendar year, this employee would likely be able to use his or her remaining six weeks of EFMLA through March 31, 2021, reduced only by any regular FMLA also used during that same period.

General Considerations for Employers

Employers should consider whether to voluntarily extend their FFCRA leave programs through March 31, 2021 to take advantage of tax credits, and should advise their employees of the decision. C.A.A. 2021 does not address whether employers can choose to extend only EPSL or EFMLA, or both, nor does it address whether the employer must make the extension available to all employees or only some of them. However, employers should be careful to avoid making any choices that could be viewed as illegally discriminatory.