December 14, 2020 

In March, Congress enacted the Families First Coronavirus Response Act (“FFCRA”) in response to the spread of the novel coronavirus and the illness it causes, COVID-19. Generally, the FFCRA requires public employers and private employers with fewer than 500 employees to offer employees two types of paid leave benefits for certain reasons related to COVID-19: (1) up to 80 hours of emergency paid sick Leave (“EPSL”) and (2) up to 12 weeks of expanded family medical leave (“EFML”).

When Congress passed the FFCRA, it set the paid sick leave entitlements to expire on December 31, 2020. Although COVID-19 cases are on the rise in the United States, and a recent study suggested that FFCRA paid sick leave has been effective in reducing COVID cases by nearly 400 cases per day, it is uncertain whether Congress will pass a bill extending the paid sick leave provisions of the FFCRA.

In May, the U.S. House of Representatives passed H.R. 6800 (“The Heroes Act”), which sought to extend paid sick leave under the FFCRA until the end of 2021. However, the U.S. Senate has not considered the Heroes Act or proposed any other bill to do so. Because there has been an absence of congressional action, employers should begin planning as the FFCRA will expire at the end of the year.  Below are some key takeaways regarding what the FFCRA expiration might mean for your organization:

  1. Employees will not be entitled to receive EPSL or EFMLA after December 31, 2020.

Employers should communicate to employees that paid sick leave under the FFCRA will not be available after December 31, 2020. Employers should, however, continue to allow eligible employees to take paid sick leave under the FFCRA through and including December 31, 2020.

  1. Private employers will not receive tax credits after December 31, 2020.

While employers may continue to offer COVID-19-related paid sick leave programs past the FFCRA expiration date, eligible employers that do so will not receive tax credits from the federal government.

  1. Employee balances of EPSL and EFML will expire after December 31, 2020.

On January 1, 2021, employees will lose any balance of unused EPSL and EFML. Employees are not entitled to a “payout” of unused paid sick leave under the FFCRA.

We will continue to monitor whether Congress passes a bill to extend the paid leave provisions of the FFCRA. However, in the meantime, employers need to prepare to update their leave policies and practices. The attorneys at Walter | Haverfield are here to help you navigate your obligations under local, state, and federal laws.

Elizabeth Bolduc is an attorney at Walter | Haverfield who focuses her practice on labor and employment law. She can be reached at ebolduc@walterhav.com or at 216-658-6218.