Paid COVID-19 Leave Extended on a voluntary Basis Through March 31

By: Marcia L. DePaula, Allison B. Williams

Published: December 28, 2020

Since April 1, employers with fewer than 500 employees have been required to grant paid leave to their employees for a variety of COVID-related reasons. The two paid-leave provisions in the Families First Coronavirus Response Act (FFCRA) (1) created a paid sick-leave benefit for the first time at the federal level, the Emergency Paid Sick Leave Act (EPSLA), and (2) amended the FMLA to allow for paid leave in the narrow instance of school and child care facility closures due to COVID, the Emergency Family and Medical Leave Expansion Act (EFMLEA). Pursuant to the EPSLA, full-time employees could receive up to 80 hours of paid leave, with certain pay caps depending upon the reason for the leave. Likewise, under the EFMLEA, an employee dealing with a school closing or unavailability of child care, could receive partial pay for up to 10 weeks. Once employers fronted these payments to employees, they could seek reimbursement from the federal government in the form of tax credits or refunds. With what was probably misplaced, well-intended optimism, the paid-leave acts were scheduled to “sunset” on December 31, 2020. There has been much speculation these last several weeks, as the pandemic continued to rage, whether Congress would extend the FFCRA paid leaves.

Recently, in the much-ballyhooed Stimulus Bill, Congress ended the speculation. Buried in that 5,000+ page bill were five pages of legislation that allows employers to voluntarily give these paid leaves through March 31, 2021. The mandate to provide the leave, however, will end on December 31.

If an employer voluntarily provides paid leave to employees after December 31, as if the EPSLA and/or the EFMLEA were still in effect, then the federal government will provide tax credits/refunds to the employer just as it has done these last nine months. If an employer wants to take advantage of this continued federal subsidy of paid leaves, then it should keep the following points in mind:


The United States has long been criticized for not offering paid leave at the federal level. With the first crack in the wall being the FFCRA, there is speculation that the Biden Administration will push for legislation that would make permanent federal paid leaves of absence. It is too early to guess at whether or when that leave will come, or what employers would be covered. Nevertheless, the March 31 date could now serve as a deadline for yet another extension of paid leave related to COVID. Alternatively, going forward the FFCRA may have created a blueprint by which covered employers will front paid leave and then recover the funds on the back end from the federal government.

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