Co-authored by Attorney Rachel Soderstrum 

Bipartisan, veto-proof legislation was sent to President Trump on December 21, 2020 for a second round of pandemic stimulus, along with the federal budget for FY 2021. Despite last-minute objections from President Trump that the stimulus payments were too small and the budget included wasteful spending, he signed the Consolidated Appropriations Act (CAA 2021) on December 27, 2020.

Tax Credits

The CAA 2021 allows FFCRA-covered employers to voluntarily extend two types of emergency paid leaves through March 31, 2021 that were originally mandated between April 1, 2020 and December 31, 2020 by the Families First Coronavirus Response Act (FFCRA). These FFCRA leaves are Emergency Paid Sick Leave (EPSL) and Emergency Family and Medical Leave (EFMLA).

Under the new legislation, private businesses and non-profits with fewer than 500 employees who choose to do so, can take tax credits for FFCRA leaves taken between January 1, 2021 and March 31, 2021.

Sorry government entities, but the tax credit did not apply to you under the FFCRA, originally, and it does not apply to you under the CAA 2021, either. Without the tax credit, public employers have little incentive to extend the EPSL or EFMLA leaves to their employees, although it appears they generously could.

Employers who choose to extend FFCRA leaves must comply with EPSL and EFMLA requirements or be liable for failing to do so.

Emergency Paid Sick Leave (EPSL) Carryover

The FFCRA provided up to 10 days of EPSL, with varying levels of pay, for any of six COVID-19 qualifying reasons between April 1, 2020 and December 31, 2020. Carryover of unused EPSL into 2021 was not allowed under the FFCRA—at least not as originally written.

The CAA 2021, however, amends the carryover provision of EPSL. Employers may now voluntarily choose to permit the carryover of unused 2020 EPSL into the first quarter of 2021. If they do, EPSL tax credits associated with this paid leave can be taken through March 31, 2021. The tax credits are an incentive for FFCRA-covered employers to choose to carryover unused EPSL.

It is important to note that the CAA 2021 does not provide employees with additional EPSL. Employees who emptied their EPSL tank of 10 days in 2020 have nothing to carry over into the first quarter of 2021 should their employers decide to allow EPSL carryover. The CAA 2021 merely extends the tax credit available to private employers under the FFCRA, and does not create new EPSL leave.

Although not specifically addressed in the legislation, employers who choose to allow carryover EPSL should do so for all employees. Additional liability may arise under other laws if employers cherry-pick who gets to carryover EPSL and who does not.

Emergency Family and Medical Leave Act (EFMLA leave) Extension

The FFCRA amended the Family and Medical Leave Act (FMLA or regular FMLA) to add EFMLA as a new qualifying reason for leave. EFMLA is available when an employee is needed to care for a child because of the closure of a school or place of care, or day care being unavailable, due to COVID-19. Some EFMLA rules differ from regular FMLA rules. For instance, EFMLA applies to different employers (i.e., those with fewer than 500 employees) than those covered by regular FMLA (i.e., those with more than 50 employees). Additionally, for eligibility purposes, employees are eligible for EFMLA after only 30 days of employment, whereas under regular FMLA, employees must meet three additional onerous requirements before becoming eligible (i.e.,12 months of service; 1,250 hours worked in the preceding 12 month period; and assigned to work at a site with least 50 employees within a 75 mile radius). Certification of EFMLA leave is, necessarily, quite different from what employers can require of employees seeking regular FMLA leave. EFMLA provides 2/3 pay for 10 of its 12 weeks, whereas regular FMLA is 12 weeks of unpaid leave.[1] By amending an existing leave law, Congress implied that the FMLA would answer EFMLA questions not covered in the FFCRA.

            Like the EPSL extension, whether to extend EFMLA under the CAA 2021 is voluntary, at the option of the employer. Private and non-profit employers who choose to continue providing EFMLA can claim the payroll tax credit through March 31, 2021. While employers are no longer required to provide the FFCRA leaves under the CAA 2021, the payroll tax credits are an incentive to do so.  Employers should approach this decision even more thoughtfully than the decision on whether to extend EPSL because EFMLA leaves can be much longer and there are unanswered questions about the mechanics of extended EFMLA leaves (see the next section).  The CAA 2021 does not prohibit or require employers who choose to continue EPSL to also continue EFMLA. Thus, it appears the two decisions can be made separately and can differ.

Although not specifically addressed in the legislation, employers who choose to offer EFMLA in Q1 2021, should do so for all employees eligible for it, and should not make that decision on a case-by-case, employee-by-employee basis.

Two EFMLA and FMLA Wrinkles

The FFCRA did not provide an additional 12 weeks of EFMLA leave to employees who were otherwise eligible for regular FMLA. Rather, the FFCRA limited regular FMLA and EFMLA, combined, to a total of 12 weeks. Whether the CAA 2021’s voluntary extension of EFMLA will provide employees with another 12 weeks of EFMLA in 2021, or whether they only get the rest of what wasn’t used in 2020, is a wrinkle waiting to be ironed out by the regulators. As one blogger put it:

Because the FFCRA’s paid FMLA provisions (which apply to COVID-19 childcare-related absences) operate as an amendment to the FMLA itself, it is possible, depending on how an employer calculates its FMLA leave year (e.g., rolling vs. calendar year basis), that employees will qualify for a new bucket of FMLA leave on January 1, 2021. If this is the case, then employees could have available an additional 12 weeks of FMLA under the FFCRA, with the final 10 weeks paid, beginning on January 1, 2021, to use through March 31, 2021.

Jon Hyman, Coronavirus Update 12-22-2020: Congress approves an FFCRA extension (sort of), Ohio Employer’s Law Blog (Dec. 22, 2020).

While the DOL and IRS have not yet provided updated guidance on how paid FMLA will work under this newly enacted legislation, this question appears to be on the minds of many of us, including FMLA thought leader Jeff Nowak. See Jeff’s post titled Breaking: Congress Declines to Extend FFCRA Leave, Offers Tax Credits to Those Voluntarily Providing Paid Leave, in his FMLA Insights: Guidance & Solutions for Employers blog on December, 21, 2020.

Another wrinkle in the CAA 2021 applies to employers covered by both the FFCRA and the FMLA. This problem is that the “12-weeks-in-12-months” clocks for FMLA and EFMLA clocks do not always start or end together. This has already caused a few difficulties in 2020, and more will likely arise for employers who choose to extend the EFMLA.

The EFMLA clock ran from April 1, 2020 through December 31, 2020 (only nine months). Now, under the CAA 2021, it could run through March 31, 2021 (12 months) for employers who choose to extend it. The clock for regular FMLA runs according to the option the employer chose in its FMLA policy. FMLA regulations allow employers to choose among four options for measuring the 12-month FMLA leave period for use of the 12 weeks of regular FMLA. The choices are:

  1. Calendar year,
  2. Another fixed 12-month period, such as employee anniversary date,
  3. The 12 months measured forward from the employee’s first use of FMLA, or
  4. A rolling 12-months measured backward from any date the employee uses FMLA.

 

See 29 C.F.R. § 825.200(b). Most employers choose the fourth option because it does not allow for stacking. Stacking occurs when the employee is on FMLA at the end of a fixed FMLA leave year, and remains off through the beginning of their next, fixed FMLA leave year. This stacks two leave allotments together for the possibility of up to 24 consecutive weeks off.

Whenever there are two different leave clocks running, determining how much leave is available for each of the different reasons quickly gets complicated. Consider the following example.

Scenario Facts: ABC Company is both FMLA-covered (50 or more employees) and EFMLA-covered (fewer than 500 employees). ABC chose the popular rolling backward method for measuring the 12-month period in its regular FMLA policy. ABC also voluntarily chose to extend EFMLA to all of its employees for the first quarter of 2021, as allowed by the CAA 2021.

 

Sally has a full-time job that cannot be performed remotely. Sally used six weeks of regular FMLA January 2, 2020 through February 11, 2020 to care for her spouse who was incapacitated due to a serious health condition. On March 17, 2020, she had to stay home to care for her school-age child because the Governor declared a pandemic and closed schools across the state. Sally used six weeks of EFMLA in Spring 2020, until she exhausted her 12 weeks of combined FMLA and EFMLA on April 27, 2020. Sally worked the rest of 2020. On January 4, 2021, the school for Sally’s child went on a 100% virtual learning plan, meaning it was closed for purposes of EFMLA leave. Because ABC chose to extend EFMLA into Q1 2021, Sally requested EFMLA to begin on January 4, 2021.

 

Question: How much EFMLA is available to Sally? Does she have the same amount of regular FMLA if a need for that arises, too?

 

Answer: On January 4, 2021, Sally has six weeks available to use for EFMLA or for a regular FMLA purposes. If she needs it, she can use EFMLA or FMLA consecutively through about mid-February. If she does, she will have a gap in the availability of leave. Sally will not likely re-qualify to use EFMLA or FMLA until March 17, 2021. At that time, she should have six weeks of regular FMLA available to use, but only the first two weeks of that can be used for EFMLA purposes because the EFMLA voluntary extension sunsets on March 31, 2021. In this particular scenario, the clocks for both FMLA and EFMLA start at the same time, but the EFMLA clock runs out before the regular FMLA clock.

Conclusion: Choose Wisely and Carefully

Employers do not often get a choice about whether an employment law will apply to them or not. Don’t take these decisions lightly, and don’t decide whether to extend EFMLA or EPSL through March 31, 2021 without obtaining the advice of competent employment counsel and analyzing the impact of doing so on your business.


[1] Other paid leaves can run concurrently with regular FMLA or any unpaid portion of the EFMLA.