On April 1, 2020, Congress enacted the “Families First Coronavirus Response Act” (or “FFCRA”), which requires all private employers with fewer than 500 employees to offer employees two types of paid leave benefits: (1) up to 80 hours of Emergency Paid Sick Leave or “E-PSL” and (2) up to 12 weeks of Public Health Emergency Leave or “E-FMLA” (although only 10 weeks are paid).
Importantly, though, the leave may be taken only from April 1, 2020 to December 31, 2020. As we approach the end of 2020, employers may have several questions about what the expiration means.
Do I Need to “Pay Out” E-FMLA or E-PSL on December 31?
No. The FFCRA does not require employers to “payout” unused E-PSL or E-FMLA. Instead, if an employee has a balance of unused E-PSL or E-FMLA remaining on January 1, 2021, the balance simply goes away.
Of course, Congress may decide to extend the FFCRA or provide additional benefits. Unless or until that happens, however, the balances will expire on January 1, 2021.
What If I Have an Employee Out on E-PSL or E-FMLA on December 31?
If you have an employee who requests to use E-PSL or E-FMLA in late December, it is best to advise them that the leave will expire on January 1, 2021. Employees should be permitted to use E-PSL or E-FMLA through (and including) December 31.
On January 1, 2021, the employee will no longer have E-PSL or E-FMAL available. The employee should, however, be permitted to use other accrued and unused time off under the employer’s policies (such as sick leave or PTO). The employee may also be eligible for an unpaid leave of absence under the employer’s policies (e.g., non-FMLA medical leave) and that option should be explored as well. In addition, as outlined below, the employer may be required to provide additional unpaid leave as required by state or federal law.
Can an Employee Request Other Types of Leave Starting January 1, 2021?
Yes, as noted above, additional forms of leave may be available under federal and state law.
First, an employee who cannot work because of a “disability” may be eligible for an unpaid leave of absence under the Americans with Disability Act (or ADA), unless the requested leave is an “undue hardship.”
Second, if an employee has a “serious health condition” or is caring for someone with a “serious health condition,” the employee may be eligible for regular FMLA leave under the federal Family Medical Leave Act. This assumes, of course, that the employer has 50 or more employees and the employee is “qualified” because he or she has been employed for at least one year and has worked at least 1,250 hours in the past year. This also assumes that the employee has not already exhausted all 12 weeks of FMLA leave in the current “leave year” (by using E-FMLA or FMLA).
Finally, state laws may provide additional leave beyond what is required by the ADA or FMLA. In addition, some states have developed paid or unpaid leave laws similar to the FFCRA that may continue to require the employer to provide leave (paid or unpaid) after December 31. Employers should be mindful of these laws as well.
Bottom Line
In the absence of Congressional action, E-PSL and E-FMLA will not be available to employees after December 31. There is no payout or obligation to allow employees to use any unused E-PSL or E-FMLA after that date. Employers should, however, continue to allow employees to use any unused E-PSL and E-FMLA through (and including) December 31.
On January 1, 2021, employers may still have obligations under their own policies or to provide additional leave under state or federal law. Employers facing additional COVID-19-related leave requests would be best-served to reach out to counsel to ensure that they are handling these requests properly.