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Update on Pandemic Leave and Unemployment Benefits

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Update on Pandemic Leave and Unemployment Benefits G THE B IN EN V C R H E S A N 8 D 8 B 18 AR CE WWW. NYLJ.COM SIN VOLUME 265—NO. 24 FRIDAY, FEBRUARY 5, 2021 LABOR RELATIONS Expert Analysis Update on Pandemic Leave and Unemployment Benefits he notorious year 2020 has potential changes anticipated under come to a close, yet the President Biden’s administration. COVID-19 pandemic is far COVID-19 Leave from over. The paid sick leave and expanded fam- The FFCRA, enacted on March 18, ilyT and medical leave requirements 2020, generally required employ- By And under the Families First Coronavi- David E. Risa M. ers with fewer than 500 employees Schwartz Salins rus Response Act (FFCRA) expired (subject to certain exemptions for on Dec. 31, 2020. The Consolidated employers with less than 50 employ- Appropriations Act of 2021 (CAA) would extend and expand FFCRA ees) to provide their employees with does not extend employees’ enti- leave. President Biden’s plan, sub- paid sick leave or expanded family tlement to FFCRA leave into 2021, ject to Congressional approval, also and medical leave for reasons related but offers employers tax credits for would extend and increase pandem- to COVID-19. The FFCRA provided FFCRA leave voluntarily provided ic-related unemployment benefits two weeks (up to 80 hours) of paid to employees until March 31, 2021. through at least September 2021. sick leave to any employee unable The CAA also reauthorized payment to work because (1) the employee of pandemic-related unemployment was quarantined and/or experiencing insurance benefits, and created a Providing employees with flex- COVID-19 symptoms and seeking a new Mixed Earner Unemployment ibility to take leave encourages medical diagnosis, or (2) the employ- Compensation program, in each case employees to stay home when ee needed to care for an individual through March 14, 2021. they are sick and avoid the risk subject to quarantine, or a child In the meantime, on Jan. 14, 2021, of spreading the virus to others whose school or child care provider President Biden announced his in their workplace. closed or was unavailable for rea- American Rescue Plan, which calls sons related to COVID-19. The FFCRA for Congress to enact legislation that This month’s column discusses also provided employees employed the current state of COVID-19-related for at least 30 calendar days with FFCRA leave and federal unemploy- up to an additional 10 weeks of paid DAVID E. SCHWARTZ is a partner at the firm of Skad- den, Arps, Slate, Meagher & Flom. RISA M. SALINS ment insurance benefits, including expanded family and medical leave is a counsel at the firm. CRYSTAL D. BARNES, an recent U.S. Department of Labor (at two-thirds the employee’s regular associate at the firm, assisted in the preparation of this article. guidance in these areas, as well as rate of pay) when unable to work due FRIDAY, FEBRUARY 5, 2021 to a need to care for a child whose school or child care provider was closed or unavailable for reasons related to COVID-19. The FFCRA’s paid leave require- ments expired on Dec. 31, 2020, meaning employers no longer are legally required to provide such leave. Any extension of such leave requirements would require an amendment to the statute by Con- gress, but no amendment has been enacted to date. On Dec. 31, 2020, the U.S. Depart- ment of Labor’s Wage and Hour Divi- sion (WHD) issued guidance explain- ing that, although the FFCRA expired, the CAA extended employer tax cred- its for paid FFCRA leave voluntarily provided to employees until March 31, 2021, incentivizing employers to provide such leave voluntarily. See U.S. Dep’t of Labor, Wage & Hour Div., Families First Coronavirus Response Act: Question 104. Employers may choose to con- satisfying numerous administrative providing FFCRA paid sick leave to tinue voluntarily offering FFCRA requirements in order to be eligible an employee in 2021 if that employ- leave for a number of reasons. Pro- for the CAA tax credit, including ee already took the allotted 80 hours viding employees with flexibility to confirming employees who take the of sick leave in 2020. Further, the take leave encourages employees to leave actually qualify, ensuring wages tax credit for FFCRA paid expanded stay home when they are sick and do not exceed the statutory caps or family and medical leave in 2021 will avoid the risk of spreading the virus limits, tracking the leave, maintaining likely depend on how the employer to others in their workplace. With- documentation, and meeting other calculates a twelve-month period out paid leave, employees are more IRS requirements. Small employers under its FMLA policies and how likely to go to work sick or knowingly may not want to take on these add- much FMLA and expanded family exposed. Additionally, leave prevents ed tasks, particularly if only limited and medical leave an employee has a business from being forced to close employees did not use their FFCRA already taken during the 12-month if the workplace has rampant cases leave entitlement by the end of 2020. period. Employers who voluntarily of COVID-19 exposure or infection Employers that choose to pro- provide FFCRA leave should look and/or related negative publicity. vide FFCRA leave through March out for guidance from the Depart- If employers continue to provide should be aware they likely will ment of Labor regarding the effect FFCRA leave, they must be diligent in be unable to claim a tax credit for that previously provided leave will FRIDAY, FEBRUARY 5, 2021 have on the calculation of the tax practices regarding the continued available to employees of businesses credit in 2021. provision of FFCRA leave to their with more than 500 employees, as The WHD guidance also addressed workforce, as well as any other COV- well as to federal workers, who all how the Department would address ID-19 leave that is locally required or were previously excluded, and also leave taken pursuant to the FFCRA in voluntarily being provided to their eliminate the exemptions that were 2020 that was not paid by an employ- workforces. available to employers with fewer er. The WHD will continue to enforce than 50 employees. The plan also Unemployment the FFCRA for leave taken or request- provides that the federal government Compensation ed during the effective period of April would reimburse employers with 1 through Dec. 31, 2020. The statute The Coronavirus Aid, Relief and fewer than 500 workers for the full of limitations for complaints regard- Economic Security (CARES) Act pro- cost of providing the leave. ing FFCRA leave is two years from vided new expanded unemployment Regarding unemployment insur- the date of the alleged violation, or insurance benefits for employees ance benefits, President Biden’s plan three years in cases involving alleged out of work for reasons related to would increase the FPUC amount willful violations. See U.S. Dep’t of the pandemic. The CAA signed into from $300 to $400 per week as well as Labor, Wage & Hour Div., Families law on Dec. 27, 2020 reauthorized extend PUA, FPUC and PEUC (all cur- First Coronavirus Response Act: the payment of certain unemploy- rently set to expire in March) through Question 105. ment benefits which expired under September 2021. President Biden also Employers also should be mindful the CARES Act, including Federal directed the Department of Labor to that, while FFCRA leave no longer is Pandemic Unemployment Com- consider clarifying that workers have mandatory, many states and locali- pensation benefits which now will a right to refuse employment that ties have passed and continue to be in place through March 14, 2021 will jeopardize their health and still develop their own paid leave laws The CAA also created the new Mixed qualify for unemployment insurance. related to the pandemic that have Earner Unemployment Compensa- Employers should stay current not expired. For example, under the tion program which will be in place on developments under the Biden New York COVID-19 Paid Leave Law, through March 14, 2021. The chart administration expected to expand New York state continues to require below summarizes these updates to relief to workers in light of the con- employers to provide job-protected unemployment benefits under the tinued pandemic. paid and unpaid sick leave (depend- CAA: ing on the size of the employer) to President Biden’s Plan certain employees who are subject to a mandatory or precautionary order Before his inauguration, Presi- of quarantine or isolation. Employ- dent Biden outlined his proposed ees who exhaust such sick leave are American Rescue Plan for combat- eligible to apply for New York State ting the impact of the coronavirus, paid family leave and disability ben- which is subject to Congressional efits. Employees who used up FFCRA approval. President Biden’s plan benefits in 2020 are not disqualified would require employers to offer from these New York state benefits FFCRA leave through Sept. 30, 2021 in 2021. and extend the maximum duration of Reprinted with permission from the February 5, 2021 edition of the NEW YORK Employers are advised to com- FFCRA leave to 14 weeks. In addition, LAW JOURNAL © 2021 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. For information, contact 877-256-2472 municate clearly to employees their it would require FFCRA leave to be or [email protected]. # NYLJ-02042021-477740.
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