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The Families First Coronavirus Response Act (FFCRA) signed into law in March is set to expire December 31, 2020. The law requires covered employers with less than 500 employees to provide US-based employees with paid sick leave (up to 80 hours) and paid family care leave (up to 10 weeks) for COVID-19-related purposes. To help employers offset this cost, the government provides a special FFCRA-paid leave tax credit when employees take qualifying leave. FFCRA does not apply to larger employers.

In September, Governor Gavin Newsom closed the so-called “FFCRA loopholes” for California-based employees by signing A.B. 1867 into law. The new statute took effect immediately and requires employers to provide up to 80 hours of “COVID-19 supplemental paid sick leave” to the following “covered workers:”

  • California-based employees of larger employers (500 or more employees in the U.S.);
  • Specified “food sector workers” (A.B. 1867 effectively codifies Governor’s Newsom’s existing Executive Order already granting paid COVID-19 paid sick leave to these workers); and
  • Health care workers and emergency responders who were excluded from FFCRA by their employers.

California’s Supplemental Paid Sick Leave Act (CSPSL) is also set to expire December 31, 2020, unless FFCRA is extended by Congress.

Here’s what you need to know about the expiration of these leave laws:

  • FFCRA extension unlikely | The likelihood of extension under the current administration appears slim. President-elect Biden may push for a renewal once he is in office next year, but a lot will depend on the virus’s continuing impacts on U.S. employees.
  • Employers’ obligation ceases | Companies’ obligation to provide paid or unpaid leave for personal or child care issues relating to COVID-19 will end.
    • Employers who voluntarily continue such paid leave cannot claim the current tax credits for wages provided to qualifying employees.
  • Cashing out | In its current form, neither law requires employers to “pay out” unused COVID-19 leave to employees. Any balance of unused leave will expire on January 1, 2021, unless either law is extended or otherwise amended.
  • Leave over the New Year | Employers may wonder how to handle employees who are already out on leave when the laws expire New Years Day. The answer is different under FFCRA and CSPSL.
    • FFCRA benefits automatically end on December 31, and cannot continue into the new year. Leave taken after December 31 must be taken through some other mechanism (accrued PTO, FMLA if applicable, etc.). Whether the employee gets paid will depend on the type of leave applied.
    • Under CSPSL, if the law expires while a worker is taking COVID-19 Supplemental Paid Sick Leave, the worker is permitted finish taking the  leave they are entitled to receive (i.e., 80 hours for full time employees) even if some leave post-dates the law’s sunset date.
  • Other types of available leave | State and local sick leave statutes may entitle employees to time off from work, with or without pay, due to COVID-19 reasons even following the expiration of the FFCRA and CVSPL. Workplace safety statutes, such as Cal/OSHA’s temporary standards for workplace safety may also require leave and/or pay.  Employees with COVID-19-related medical complications may have serious health conditions that make them eligible for traditional unpaid FMLA leave. Longer-term COVID-19 medical complications could also meet the definition of a disability under the Americans with Disabilities Act and possibly qualify the employee for reasonable accommodations, including unpaid leave from work. Note that Neither the FMLA or ADA provide leave rights due to employee child care needs.