As passed back in March 2020, the Families First Coronavirus Response Act (FFCRA)’s Emergency Paid Sick Leave (EPSL) Act and Emergency Family and Medical Leave Act (EFMLA) requirements by which employers with less than 500 employees must provide paid leave for certain COVID-19-related circumstances will expire as of December 31, 2020. The Coronavirus Response and Relief Supplemental Appropriations Act (Supplemental Bill) passed by Congress on December 21 does not extend those requirements beyond the December 31 date. However, the Supplemental Bill does continue to allow covered employers to take tax credits for such paid leave provided to employees between January 1 and March 31, 2021, if that paid leave would have otherwise been consistent with the FFCRA’s requirements if they had been extended beyond December 31.
In other words, if a full-time employee has not yet taken his or her allotment of the 80 hours of leave available under the EPSL Act, a covered employer is not required to, but may voluntarily, provide such leave through March 31, 2021 for circumstances that would have qualified (up to the 80-hour limit) and then take a tax credit for that paid leave. The calculation of the amount of paid leave available between January 1 and March 31, 2021 for which an employer would be eligible for tax credits with respect to circumstances otherwise qualifying under the EFMLA is a bit more complicated and depends on whether the employer uses a calendar year or rolling 12-month period with respect to calculating available FMLA leave.
Presumably, employers who use a calendar year would be able to provide employees with an additional ten weeks of otherwise qualifying paid leave through March 31, 2021. However, employers who use a rolling 12-month period for FMLA leave will be required to continue using that rolling 12-month measure in determining how much paid leave they can provide and still receive the tax credit. While not required to grant paid leave under the EPSL Act or EFMLA after December 31, 2020, those employers who choose to do so should be mindful of doing so consistently to avoid claims of unlawful discrimination.