The Families First Coronavirus Response Act expired on December 31, 2020, with tax credits extended through March 31, 2021 for any employer opting to continue providing the paid leave.  Under the current administration, there has been a proposed reinstatement option for the FFCRA, which would reinstate paid leave through September 30, 2021. 

Below is additional information on the Biden proposal:

• All employers, including businesses with fewer than 50 or more than 500 employees, along with the federal government will be required to provide FFCRA leave.
• Healthcare workers and first responders will be entitled to FFCRA leave under the new proposal.
• Other considerations- the amount and the potential duration of FFCRA benefits might increase under the new plan.
• End date of September 30, 2021.

New York COVID Sick Leave Update:

Number of Employees  (As of Jan. 1, 2020)	Amount of Sick Leave	Supplemental Benefits
0-10 employees; net income of $1 million or less in the prior tax year	Unpaid leave for duration of the order	Combined COVID-19 Paid Family Leave (PFL) and Disability Leave Benefits (DBL) for the duration of the order
0-10 employees; net income of more than $1 million in the prior tax year	5 days of paid sick leave	Combined PFL and DBL for the duration of the order
11-99 employees	5 days of paid sick leave	Combined PFL and DBL for the duration of the order
100+ employees	14 days of paid sick leave

Public employers must also provide 14 days of sick leave at the employee’s regular rate of pay when an employee is covered by the NY COVID-19 sick leave law.

The Jan. 20, 2021 guidance states that employees are entitled to COVID-19 sick leave under the following circumstances:

• If an employee tests positive for COVID-19 following a period of mandatory quarantine or isolation, the employee cannot report to work, is automatically deemed subject to a subsequent mandatory order of isolation from the Department of Health and is entitled to paid sick leave under the NY COVID-19 sick leave law (even if the employee already received NY COVID-19 sick leave for the first period of mandatory quarantine or isolation). In order to receive NY COVID-19 sick leave for the second time, the employee is required to submit documentation of the positive COVID-19 test result from a licensed medical provider or testing facility to the employer or to the employer’s insurance carrier, if applicable (unless the employer gave the employee the COVID-19 test).
• If an employee is subject to an order of quarantine or isolation and continues to test positive for COVID-19 at the end of the quarantine or isolation period, the employee may not return to work, is automatically deemed subject to an additional mandatory order of isolation and is entitled to COVID-19 sick leave for the second period of isolation. The employee is required to submit documentation of the subsequent positive COVID-19 test result from a licensed medical provider or testing facility to the employer or to the employer’s insurance carrier, if applicable (unless the employer gave the employee the COVID-19 test that showed the positive result). (BSK)

Current FFCRA Considerations in 2021:

• Offering EPSL and EFMLA after December 31 will become optional for employers.  
• An employee will no longer be entitled by law to take EPSL or EFMLA, even if they have a qualifying reason.
• Employers who choose to offer these paid leaves can still receive a tax credit if they follow the current EPSL and EFMLA rules, including job protection.
• The extension of the tax credit will be available for leaves taken through March 31, 2021.
• Employees will not get new hours to use—the unused portion of their original allotment that remains on January 1 is how much they will be able to use through March 31. For instance, if an employee who was entitled to 80 hours of EPSL between April 1 and December 31 used 40 of those hours in 2020, they would have 40 hours left to use between January 1 and March 31, 2021.
• There is a possible exception when an employee’s EFMLA bank could reset if employers use the calendar year or another fixed FMLA tracking period that starts before March 31 and the DOL fails to readopt the regulations they wrote related to EFMLA. We expect the IRS, DOL, or both, to provide guidance soon that will clear up whether certain employers will need to offer additional hours. We will update the HR Support Center as information becomes available. (HR On the Move)

Other Considerations:

• Frequently asked questions on the DOL
• Current employer policy and procedures
• Labor and Employment Law Posters (mandatory or recommended)

Continue to monitor for updates by the local, state, and federal government.  These changes do impact organizations both large and small. Review call-in procedures and create a form that is easy for tracking leave usage as well.  I am happy to work with any organization that has questions or concerns regarding current leave.

EMPLOYEE REQUEST FOR EMERGENCY FAMILY AND MEDICAL LEAVE

Employees requesting Emergency FMLA (EFMLA) pursuant to the Families First Coronavirus Response Act (FFCRA) must complete this form. You must provide as much advance notice as is reasonably practicable. Upon completion of this form, submit it to Human Resources for processing.