So Emergency Paid Sick Leave and Emergency FMLA Leave Have Expired?  Should We Extend?

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Diane Juffras

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The Consolidated Appropriations Act, 2021, commonly called the stimulus bill and signed into law on December 27, 2020, let the leave requirements of the Families First Coronavirus Response Act (FFCRA) expire.  No longer are employers obligated by law to grant employees 80 hours of paid sick leave for COVID-19 related reasons (emergency paid sick leave or EPSL) and up to 12 weeks of paid FMLA leave (emergency Family and Medical Leave Act or EFMLA) to care for a child whose place of care or school is closed for COVID-19 related reasons. The requirement expired on December 31. Look at this blog post. In response to that news, I have received a number of questions about voluntarily extending these benefits. This blog post addresses some of those questions. 

QUESTIONS ABOUT EXTENDING FFCRA LEAVE

  1. Is it true that employers may voluntarily decide to be bound by the FFCRA’s emergency paid sick leave (EPSL) and emergency FMLA (EFMLA) leave requirements through March 31, 2021?
    • The stimulus bill allows employers to choose to continue to be bound by the FFCRA’s leave requirements through March 31, 2021. Private employers who make that choice will continue to claim tax credits for FFCRA leave payments through March 31, 2021. Public employers have been ineligible for tax credits all along and remain ineligible.
  1. If a public employer chooses to continue to be bound by either EPSL or EFMLA through March 31, 2021, will it still be exempt from the employer social security contribution portion of FICA through March 31, 2021?
    • The employer social security contribution exemption was not extended. It ended on December 31, 2020.
  1. If an employer chooses to continue to be bound by EPSL through March 31, 2021, do employees who have already used their 80 hours of EPSL get a second entitlement of EPSL?
    • When an employer chooses to extend EPSL through March 31, 2021, only employees who have not yet exhausted their 80 hours will be entitled to emergency paid sick leave.
  1. If an employer chooses to be bound by EFMLA through March 31, 2021, do employees who have already used their 12 weeks of EFMLA get a second 12 weeks of EFMLA?
    • When an employer chooses to extend EFMLA through March 31, 2021, only employees who have not yet exhausted their 12 weeks of EFMLA (or their 12 weeks of EFMLA and regular FMLA combined) are entitled to use EFMLA. This is true even if an employee’s regular FMLA clock has reset and they are now entitled to another 12 weeks of regular FMLA leave.
  1. What are the pros and cons of choosing to continue to be bound by EPSL until March 31, 2021?

Employers have three choices:

    1. Employers can decide not to extend EPSL and not to offer any other kind of Covid-related new benefit. In that case, employees could continue to use accrued paid sick or vacation leave or accrued comp time if they need to take off for a COVID-19 related reason, but they would have no special leave benefit. This option has the attraction of doing business as pre-COVID usual. Employers will not have to calculate 2/3rds of an employee’s regular rate of pay for EPSL taken for reasons 4 and 5. There is a public health downside to this option, however. If an employee who contracts COVID-19 or is exposed to it has no accumulated leave left, the employee may feel no choice but to come to work anyhow in order to keep being paid. The risk of infecting others obviously goes up. The whole point of EPSL in the first place was to avoid just this problem.
    2. Employers can choose to continue to be bound by EPSL until March 31, 2021 (but only for those employees have not already made use of their 80-hour entitlement). This choice gives employees who are infected with or exposed to COVID-19 a reason for not coming into work and it provides a form of leave with which employees and supervisors are already familiar. As a downside, the employer has obligated itself to a legal requirement. And there is expense involved.
    3. Employers can adopt a time-limited policy of granting EPSL-like leave (“COVID leave”) of their own design rather than choosing to be bound by EPSL itself. The advantage of this option is that employers can add to or subtract from EPSL’s reasons for taking leave. There are many possible examples. An employer could decide to offer COVID leave only for employees who are infected with or have had direct exposure to someone infected with COVID-19 (EPSL reasons 1 and 2). Or it could also include persons waiting for test results (EPSL reason 3). Or it might want to exclude caring for a family member with COVID-19 (EPSL reason 4) or child care where a child’s school or place of care is closed due to COVID-19 (EPSL reason 5). With a policy of its own design, an employer could choose to pay employees taking COVID leave for what were EPSL reasons 4 and 5 at 100% of their regular rate, rather than at the EPSL Act’s 2/3rds of the regular rate. Every employer’s workforce and needs are different. There is no downside to this option other than the fact that employees and supervisors would have to adjust to a new leave system.

6. What are the pros and cons of extending EFMLA until March 31, 2021?

    Employers have three choices:

    1. Employers can decide not to extend EFMLA and not to offer a similar benefit. In that case, employees could continue to use accrued paid sick or vacation leave or accrued comp time if they need to take time off from work because their child’s place or care or school is closed due to COVID-19, but they would not have a special leave benefit. This option may greatly limit the number of employees who are working remotely or working (or taking leave) on an intermittent or reduced-schedule basis.
    2. Employers can choose to continue to be bound by EFMLA until March 31, 2021 (but only for employees who have not already used either their 12-weeks of EFMLA or twelve-weeks combined of EFMLA and regular FMLA). Under this option, any time taken for EFMLA counts against an employee’s annual twelve-week total FMLA entitlement. This is an advantage over adopting an employer-designed EFMLA-like leave policy, because in that case leave would not count against an employee’s regular 12-week FMLA entitlement. Employees are likely to continue to need to make arrangements to work intermittently or on a reduced-leave schedule as many schools are continuing remote instruction in light of the winter surge in COVID-19 cases across North Carolina.
    3. Employers can adopt a time-limited policy of granting EFMLA-like leave (“COVID child care leave”) of their own design rather than choosing to be bound by EFMLA itself. Employers could limit COVID child care leave to a shorter period of time and could require that it be taken only under circumstances specified by the employer – only in full-day increments or in half-day increments, say, or only a limited number of days per week. An employer could exclude employees from particular departments from taking leave under the policy. The leave could be paid or unpaid – or paid for the first so-many weeks, and unpaid thereafter. Every employer’s workforce and needs are different.

CONCLUSION

The FFCRA’s leave requirements have expired and now North Carolina public employers have options. They can choose to let the benefits simply fall away. They can choose to be bound by the law’s leave requirements through March 31.  Or they can design their own plan with benefits more or less like EPSL and EFMLA. The benefit of choosing to be bound or choosing to provide similar benefitsis that it gives employees an incentive to stay home when they may be infectious. That is a gift not only to employees but to the community, as well. Each government employer should decide what works best for its individual workplace and community. There is no single best practice.

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