After much hand wringing, negotiation and name-calling, Congress has passed its second COVID-19 stimulus package, which was signed by President Trump on Sunday, December 27, 2020. For months, clients have been asking whether the Families First Coronavirus Response Act (“FFCRA”) will be renewed or whether it will expire on December 31. We now have the answer.

The FFCRA Mandatory Leave Requirements Expire on December 31, 2020
The mandated leave provision, for both emergency paid sick leave and expanded FMLA leave, expire on December 31. However, Congress left the door open for employers to voluntarily continue to provide FFCRA leave through March 31, 2021. Employers will receive the payroll tax credit for providing this leave through March 31.

Employers should understand that these tax credits are capped for emergency paid sick leave at $511 per day and $5,110 in the aggregate (in some circumstances the cap is $200 per day and $2,000 in the aggregate) and the cap is at $200 per day and $10,000 in the aggregate for expanded FMLA. It appears that tax credits claimed for leave taken before December 31, 2020 continue to apply and therefore the credits taken for leave on or after January 1, 2021 through March 31, 2021 must take into account any credits already taken by December 31, 2020. If an employer chooses to voluntarily allow employees after December 31 to continue to take emergency paid sick leave and/or expanded FMLA leave, employers must ensure that the total amount of credits claimed for any one employee, taking into account leave taken in 2020 and 2021, does not exceed the applicable caps.

Employees on Paid FFCRA Leave on December 31, 2020
An employer can demand that an employee who is on an FFCRA leave must return to work on January 1, 2021 since the requirement to provide that leave has expired. If the employer needs the employee to return to work after January 1, 2021 and the employee refuses, employers should consider any mandatory paid sick leave required by their city or county as well as ADA reasonable accommodation requirements before terminating the employee. However, we can expect that some employers will allow employees to complete their leave (through March 31), provided that the total tax credit does not exceed the permitted caps.

For many employers, these developments may result in anguishing and difficult decisions regarding employees who are unable to return to work because they must care for family members who have COVID, whose child care or schools are closed, or who themselves are suffering from COVID and COVID-related symptoms.

Side Note on Unemployment Compensation 
The economic stimulus package also includes an additional $300 per week in unemployment benefits through March 14, 2021. The legislation also continues to allow gig workers, independent contractors and self-employed workers to receive unemployment insurance benefits.

If you have questions or would like assistance navigating workplace legal requirements during the pandemic, please reach out to our Labor and Employment attorneys for additional guidance.