COVID-19 Paid Job Leave in 2021

Paid Job Leave Under the Families First Coronavirus Response Act (FFCRA) is Set to Expire. Now What?

At the beginning of the COVID-19 pandemic, congress passed the Families First Coronavirus Response Act that provided eligible employees with 80 hours of paid sick leave and 12 weeks of paid family leave, among other things. However, these laws as we know them will both expire on December 31, 2020. What kinds of job protection do you still have, and what are your options going forward to keep you and your family safe? Your Ohio Employment Lawyers explain everything you need to know about the changes to the FFCRA’s paid leave laws as we head into 2021.

Job Protection Under the FFCRA: Background and Eligibility Requirements

The FFCRA requires eligible employers to make 80 hours of paid sick leave available to all employees to use for COVID-19 related reasons, including if you are experiencing symptoms of COVID-19 and seeking a medical diagnosis, if you have been instructed by a medical professional to self-quarantine, or if you are caring for a child or other family member. The full list of qualifying reasons for Emergency Paid Sick Leave can be found here.

The FFCRA also requires eligible employers to offer up to 12 weeks of paid family leave under the Emergency Family and Medical Leave Expansion Act if an employee has worked for the company for at least 30 calendar days and is unable to work because his or her child’s school or place of childcare has been closed or is otherwise unavailable due to COVID-19. This type of leave is paid at 2/3 your normal rate, but it can also be used at the same time as emergency paid sick leave, meaning the first two weeks of your family leave can be paid at your normal rate, and the remaining 10 weeks will be paid out at 2/3 your normal rate.

To be eligible for either of these FFCRA provisions, you must work for an “eligible employer.” Most public employees and employees of private employers with less than 500 total employees are eligible for the FFCRA. Small businesses with less than 50 employees may claim an exemption from the FFCRA’s requirements if they can prove that compliance with these laws would “jeopardize the viability of the business as a going concern.”[1] Employers who employ individuals who provide healthcare services, emergency response services, and certain federal government employees can also exempt these employees from the FFCRA’S protections.[2]

What Will Happen in 2021

The FFCRA’s protections are set to expire on December 31, 2020, and congress has chosen not to renew these laws. Therefore, no additional leave, under either the Emergency Family and Medical Leave Expansion Act or the Emergency Paid Sick Leave Act will be provided. However, if you are an eligible employee and have not yet used all of the leave you were entitled to in 2020, your employer has the option to allow you to carry over unused leave time into 2021. You are allowed to use any of your unused leave for a qualifying reason related to COVID-19 through March 31, 2021, and your employer may take a tax credit for any days they allow you to use your paid leave. But the important difference heading into the new year is that your employer is not required to allow you to do this. Thus, if you have additional paid sick leave or family leave, your employer is not required to allow you to make use of this leave time in 2021.

If your employer does choose to allow its employees to make use of their unused paid sick leave and/or paid family leave, it is prohibited from discriminating or retaliating against any employee who seeks to use or uses such leave. Your employer will forfeit its right to claim tax credits against its employees’ use of leftover paid leave under the FFCRA if it engages in any discriminatory or retaliatory practices related to this leave.

While compliance with the FFCRA is no longer mandatory for employers in 2021, discrimination against any individual based on a disability or need for a reasonable accommodation is still unlawful. If you believe your employer has violated the FFCRA, or if you have other questions about your employment, reach out to us to schedule a free consultation.

Mansell Law

Ohio Disability and Accommodation Attorneys

[1] See 29 C.F.R. § 826.40(b)(1)

[2] See 29 C.F.R. § 826.30