Mandatory Paid Sick Leave Related to COVID-19 Expiring in 2021: What You Need to Know

December 30, 2020

ABC10 Sacramento

Downey Brand partner and employment attorney Elizabeth Stallard was interviewed for this ABC10 article related to employment programs and provisions in the recently passed federal stimulus bill. Specifically, Stallard discusses extensions to a payroll tax credit tied to paid sick and family leave and the implications of the extension for employers and employees.

See full article below or view it online at ABC10.

By Samantha Solomon for ABC10

With the second federal stimulus bill now going into effect, a lot of programs and provisions that were set to expire at the end of 2020 will now be extended.

This does not include the Families First Coronavirus Response Act (FFCRA), which made paid leave a requirement for some employers to offer during the coronavirus pandemic.

The FFCRA stated that some public employers and private employers with less than 500 employees were required to offer 80 hours of emergency paid sick leave and/or 10 weeks of expanded family leave for specific reasons related to COVID-19.

It allowed parents in need to get family leave to take care of their children who were at home due to school closures. Employers would receive a payroll tax credit for any of this leave that their employees chose to take.

Now, the tax credit will remain in place for employers who offer this paid leave through March 31, 2021, but the requirement that employers provide it will no longer be in effect.

Elizabeth Stallard, a partner in the labor and employment practice at Downey Brand LLP in Sacramento spoke with ABC10 about what this means for employees and employers.

“If an employer decides they don’t want to provide that leave benefit through March, they don’t have to, right, so it’s providing a little more power in the hands of employers,” Stallard said.

Employers who to continue to offer the paid leave can get tax credit, but they can also choose to opt out. Before, employers had to prove an exception to not be covered by the FFCRA.

The extension on the tax credit does not mean that the amount of time an employee can take for leave increased in any way, but if an employer decides to continue with the tax credit, an employee could be entitled to the same options as what was offered before.

These options include:

  • Two weeks (up to 80 hours) of paid sick leave at the employee’s regular rate of pay where the employee is quarantined and/or experiencing COVID-19 symptoms.
  • Two weeks (up to 80 hours) of paid sick leave at two-thirds the employee’s regular rate of pay where the employee needs to care for an individual subject to quarantine, or to care for a child whose school or child care provider is closed or unavailable due to COVID-19.
  • Up to 10 weeks of paid expanded family and medical leave at two-thirds the employee’s regular rate of pay where an employee is unable to work due to a need to care for a child whose school is closed due to COVID-19.

“If you had an employee who otherwise qualified for leave, and they took those 80 hours back in let’s say, you know, October of 2020, even with the option to extend the benefit through to March, that employee doesn’t get more hours,” Stallard said. “You’re not giving any more, you’re just extending the period where employees who may otherwise have not taken advantage of it, could do so for three more months.”

Keeping the FFCRA tax credit in place leaves the option open. Stallard calls it something of a “compromise,” with legislators trying to figure out how to continue protections for employees without putting a burden on any employers struggling financially or with staffing issues.

“The reality is, I think back in March and April when a lot of these things were happening they assumed, oh, we’ll be done with this by the end of 2020,” Stallard said.

Of course, that is not what happened as we now know. Several programs were set to expire at the end of December, including pandemic unemployment benefits. Now, those programs have also been extended through the federal stimulus bill.

Additionally, there are a variety of statewide, countywide and even citywide programs that added paid leave provisions as a way to round out what was going on at the federal level. As more expiration dates approach on a more local level, Stallard believes there will be a lot “in flux” when it comes to paid leave.

“We’re now seeing that those localities, I’ll say, are also extending benefits,” Stallard said.

Stallard is careful about going into specifics about what this means for the workplace because not only are there differences based on types of employment, public or private employers, number of employees, etc., but also because the way the state of California handles paid leave is different from other states.

“I think it’s important to remember when you look at a federal decision, it’s not necessarily in the eyes of how we would look at it in California, but it may be more of a response to the way employers in other states who aren’t used to providing things like paid sick leave were lobbying against this,” Stallard said.

California law states employers are obligated to offer at least 3 days of paid sick leave, which remains in place for employers who choose not to continue with the tax credit on FFCRA paid leave.

However, Stallard said the best way to really know what options are available to you is to ask your employer directly.

“There’s also other kinds of support for employees…for example if you were sick with COVID,” Stallard said. “There is disability, short-term and long-term disability benefits. There are worker’s compensation benefits, and those would become increasingly kind of in the bucket because of activity at the state-level to indicate there’s a presumption you caught it at work, right, so there’s a lot of people who may able to claim worker’s compensation.”

It’s complicated, but an employer would likely know best what is offered. Stallard also suggests going to California’s Department of Industrial Relations website. She says it’s a good place to start to find information on what is out there and who qualifies for it outside of FFCRA.

It is also important to keep an eye out for updates, Stallard advises, as programs continue to be amended as the coronavirus pandemic stretches on.

“This is a period, I think, bracing in terms of the pandemic, we know the winter is going to be rough,” Stallard said. “We’re seeing a lot of infections—a lot of impact on the community, on our healthcare. I think the next few months, we’re likely to see more fluctuation. There are things that are being extended right now because they otherwise terminate at the end of the year, but I wouldn’t be surprised if we also see changes in existing guidance especially over the next month or two.”