Alert 07.31.20
New Stimulus Measures Taking Shape
Democrats and Republicans launch negotiations, each envisioning a broad-scale extension of previous efforts to stem the economic damage from COVID-19.
Alert
Alert
12.29.20
Late on December 27, 2020, President Trump signed into law an omnibus stimulus bill. The new legislation contained much needed extensions of unemployment benefits that have supported many Americans who have experienced reduced work hours or lost their jobs during the pandemic, but it only partially extended the relief that Congress enacted in March as its first response to the pandemic: the Families First Coronavirus Response Act (FFCRA). As explained in this March 18, 2020 client alert, the FFCRA amended the Fair Labor Standards Act to mandate that employers with fewer than 500 employees (“covered employers”) provide up to 80 hours of partially paid emergency sick leave to employees unable to work because of their own or a family member’s COVID-19 symptoms, diagnosis, quarantine order, or to care for a child whose school or child care was unavailable due to the pandemic. The FFCRA also amended the federal Family and Medical Leave Act to entitle employees of covered employers to use up to 12 weeks of FMLA leave for home-schooling or childcare purposes due to the pandemic, with up to 10 weeks partially paid. As described in this March 27, 2020 client alert, employers could recoup the mandated partial payments through a payroll tax credit. FFCRA job protections and the payroll tax credit applied only to qualifying leave taken between April 1 and December 31, 2020.
Section 286 of the new stimulus legislation amends the FFCRA in several significant ways:
Employers should consider now whether to offer the extended eligibility period for FFCRA leave to their employees and to notify their employees of the employer’s policy on this issue. The Department of Labor or the Internal Revenue Service may issue further guidance about the effects of the new legislation. Until there is guidance expressly permitting case-by-case decisions, however, employers would be prudent to decide on a categorical basis whether to make FFCRA leave available in the first quarter of 2021.
Employers must also bear in mind that, even though the FFCRA mandate is expiring, state and local paid leave mandates may continue. New York’s paid sick leave law for COVID-related absences, for example, does not have a calendar-year expiration date but rather remains in force for the duration of the pandemic. Under the federal Americans with Disabilities Act and state and local human rights laws, employers may also have to grant leave or telework approval to employees with disabilities that place them at higher risk of serious complications from COVID-19. Moreover, as explained in this June 11, 2020, client alert, deciding whether to mandate that employees return to onsite work requires careful consideration of the risks and the employer’s obligations under federal occupational safety and health laws. In short, employers should proceed carefully and consult with legal counsel before moving to terminate any employee’s employment as a result of the expiration of mandatory FFCRA leave.