No Extension of COVID Sick Leave or Family Leave in New Federal Legislation

Congress enacted significant, new relief measures last month in the midst of the spiking COVID-19 pandemic. Lost in the myriad of the federal legislation was this harsh reality: Congress did not renew Families First Coronavirus Response Act (“FFCRA”) paid sick leave or family leave laws. Enacted in April 2020 at the start of the pandemic, these laws expired on December 31, 2020.

Likewise, the California Supplemental Sick Leave law just enacted in September 2020 expired. The California law was intended to “fill the gap” by covering employee working for employers with more than 500 employees.

This means that employers will no longer be required to pay up to two weeks of COVID sick leave under federal or state law. However, employers should not assume this ends their responsibility. Far from it. Especially for employees with COVID illness that extend into the new year, employees need to consider whether the employee’s situation triggers their long-established FMLA/CFRA rights, as well as possible ADA reasonable accommodation obligations. Employers should be considering which employees may need such conversion from FFCRA into sick leaves as well as seeking medical updates, and following through on the interactive process regarding expected return to work dates.

Still, as with most changes in law, questions arise. For example, can an employee who did not utilize COVID sick leave last year, but who now meets the criteria for COVID sick pay this year, request COVID sick pay? According to the Department of Labor’s FAQ issued on December 30, 2020, there is no such employer obligation. A related question involves enforcement of past obligations. For example, if the employee took eight weeks of COVID family leave last year, and was paid for six, but not the other two weeks, can the employee enforce payment this year? According to the Department of Labor, the employer is obligated to pay the additional two weeks. The FAQs in full can be found here. The latest advice on these issues is found at Questions 104 and 105.

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