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Congress Makes Additional Paid Family Leave and Paid Sick Leave Optional 

by Jean Ohman Back

Published: December, 2020

Submission: December, 2020

 



The dust has now settled on the new stimulus bill signed by President Trump on December 27, 2020. The changes to the Families First Coronavirus Response Act (“FFCRA”) were buried in over 5,000 pages of text and provide a choice for employers to continue paid leave benefits for their employees as follows:


  • Congress extended the tax credits for employers that provide both paid sick leave and paid family leave through March 31, 2021. Those credits will continue to be processed as they have been under the FFCRA.

  • Congress did not extend the mandatory requirement to provide paid leave, but it gives employers the choice to pay employees for time off required because of a COVID-19 illness, or for COVID-19 related family medical leave purposes. The provisions of the FFCRA regarding leave that qualifies for sick leave or family leave are still in effect in the event that an employer chooses to provide leave.

  • Because employers are no longer required to provide paid leave, Congress withdrew the enforcement provisions of the FFCRA with respect to both unpaid sick leave and unlawful termination. However, Congress retained the “Prohibited Acts” portion of the FFCRA (Section 5104), which provides that if an employer provides paid sick leave, it may not “discharge, discipline, or in any other manner discriminate against any employee who” takes leave, files a complaint, or provides testimony in support of a complaint.

  • Employees get only 80 hours of sick leave per year. Therefore, the amendments to the FFCRA do not give employees who have already taken their allotted 80 hours of paid sick leave any additional paid leave time. Employers may take a tax credit only for 80 hours of leave. However, employees may carry over their unused 80 hour entitlement into 2021, if an employer chooses to provide paid leave benefits.

  • Employees get only 10 weeks of FFCRA paid family leave benefits. If an employee has already used their 10 weeks of paid leave, they do not have entitlement for any additional paid leave rights.

Employers must decide whether they will choose to continue to pay for sick and family leave. Regardless, employers should provide notice to their employees regarding how they will implement leave requests in the future.


The fact that Congress has eliminated the requirement to provide paid leave does not necessarily give employers carte blanche to make employment decisions based on an employee’s decision to take unpaid leave. Employers must continue to apply state laws and federal laws that provide employees with unpaid leave. For example, if an employee has sought medical treatment (including a telemedicine visit that includes a physical examination) at least twice and took three days off work, then this is a serious health condition under the Oregon Family Medical Leave Act, the federal Family and Medical Leave Act, and the Washington State Paid Family Leave Act, which would require an employer to provide protected unpaid leave as provided for in those statutes.


In addition, if an employee must stay home from work to self-quarantine because they were exposed to COVID-19 or because they are sick, employers should be very careful and seek legal guidance before making any employment decisions based upon that employee’s absence. Staying home from work because of exposure to COVID-19 is an important societal obligation and termination for exercising that obligation could constitute wrongful discharge and expose employers to a legal claim.


Employers should continue to keep an eye on the FFCRA tax credit extensions to see if Congress makes a decision in late March to further extend the paid leave credits. Employers with questions about the changes to the FFCRA should consult legal counsel.


 



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