Important Changes Impacting Employer Obligations Relating to Paid COVID-19 Leave

Important Changes Impacting Employer Obligations Relating to Paid COVID-19 Leave
January 5, 2021 dmock2015

As 2020 came to an end, the federal government passed the Coronavirus Response and Relief Supplemental Appropriations Act, which extended the time for which employers may obtain payroll tax credits for leave provided consistent with the federal Families First Coronavirus Response Act (FFCRA) through March 31, 2021 but did not extend the obligation to provide such leave.

As had been originally contemplated by the FFCRA, those leave provisions expired on December 31, 2020, and employers are no longer required to provide such leave after that date.  However, if employers voluntarily elect to do so, they will be permitted to receive tax credits for any leave provided through March 31, 2021.  This legislation does not increase the amount of FFCRA time available to eligible employees.  Rather, it permits employers to allow an employer to use remaining leave entitlements, at the employer’s discretion, through the end of March and to recover amounts paid up to the original entitlement amounts through payroll tax credits.

The FFCRA only applies to private employers with fewer than 500 employees and to public employers.  However, public employers are not eligible for the tax credit.

The federal government’s decision not to extend FFCRA leave beyond December 31, 2020 means California’s Supplemental Paid Sick Leave (SPSL)—codified at Labor Code sections 248, 248.1 and 248.5—also expired on that date.  However, unlike the FFCRA, employees taking SPSL as of December 31, 2020 must be permitted continue to take the leave they are currently on through the end of their leave entitlement even if the entitlement extends into 2021.

California’s SPSL applies to food sector employees, certain health care provider and emergency responder employees, and all employees of California employers with 500 or more employees. Unlike the FFCRA, however, the SPSL never provided for payroll tax credits.

More information about the impact of the FFCRA’s expiration on California’s SPSL is provided by the California Department of Industrial Relations.

While the FFCRA’s and SPSL’s requirements for paid COVID-19 leave have expired, employers may nonetheless have other paid and unpaid leave obligations.  Many city and county governments have instituted their own paid sick leave requirements related to COVID-19 and have specifically extended those obligations into 2021.  In addition, consistent with Cal/OSHA’s emergency regulations that became effective on November 30, 2020, and continue for 180 days thereafter unless withdrawn or extended, employers must exclude certain employees from work for reasons related to COVID-19 and continue their pay and benefits during the period of exclusion.  In addition, employees may be eligible for paid sick leave under California’s Healthy Workplace Healthy Family Act or an employer’s paid time off policies.  Finally, employees may be eligible for unpaid time off under the federal Family and Medical Leave Act (FMLA) or California Family Rights Act (CFRA).  Notably, California expanded the CFRA effective January 1, 2021, so that it now applies to small employers (as few as five employees) and to additional categories of leave.  More information about that legislation is located on our website here.

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