No Longer Mandatory: FFCRA Leave Provisions

and   |   January 12, 2021

Families First Coronavirus Response Act (FFCRA) leave provisions are no longer mandatory for employers. The payroll tax credit is still available through March 31, 2021…

Beginning April 1, 2020, the FFCRA mandated that employers with fewer than 500 employees offer both Emergency Paid Sick Leave Act (EPSLA) leave and paid Emergency Family and Medical Leave Expansion Act (EFMLEA) leave under specific circumstances associated with the COVID-19 pandemic. The FFCRA was effective through December 31, 2020.

The Consolidated Appropriations Act (CAA)—which includes the Coronavirus Response and Relief Supplemental Appropriations Act, effective December 27, 2020—extended the payroll tax credit available to employers for amounts paid under the EPSLA and EFMLEA through March 31, 2021, but did not extend the mandate to provide the leave. The amount of leave available under the two Acts was also not expanded.

Therefore, employers may elect to voluntarily continue to offer the paid leave to those employees who did not exhaust the leave in 2020. If an employer elects to offer additional paid time off outside of the limitations of the FFCRA, they will not be eligible for the payroll tax credit for that portion of the leave.

It is advisable for eligible employers to continue to offer the leave in order to limit the number of employees who come to work sick, and therefore continue to slow the spread of the COVID-19 virus.

However, employers should only continue to offer the leave if they can meet the following requirements:

  1. The employer has a reliable and accurate method of tracking the leave;
  2. The employer intends to voluntarily offer the leave to all employees, not just certain classes of employees; and
  3. The employer will offer the leave under the same framework as the FFCRA.

As was the case in 2020, the payroll tax credit cannot be used to “double-dip.” If the employer is using CARES Act Paycheck Protection Program (PPP) loan funding to pay employees (per the extension also offered in the CAA), then the payroll tax credit is unavailable.

With regard to Tribes, the relief package also included the Tribal Coronavirus Relief Fund Extension, which granted a one-year extension through December 31, 2021, to utilize the $8 billion of CARES Act funding that was significantly delayed in 2020. Tribes may continue the use of these funds, including pay to employees, subject to the same prohibition on “double-dipping” associated with the payroll tax credit described above. Therefore, the Tribes may maintain their FFCRA compliant leave policies if they deem it appropriate.

Trusted REDW advisors are available to answer your questions regarding these legislative updates and any other human resources inquiries that may arise. Please contact REDW Principal and Human Resources Consulting Practice Leader Cristin Heyns-Bousliman, or Principal and National Tribal Practice Leader Corrine Wilson.


REDW is committed to keeping you informed at all times, and especially through the impacts of the COVID-19 pandemic. Stay connected with us on LinkedIn and @REDWLLC on Twitter. Access some of our other updates on our COVID-19 Resource Hub.

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