The Families First Coronavirus Response Act’s (FFCRA) paid sick leave and expanded family and medical leave requirements expired on December 31, 2020. Thus, employers are no longer obligated to provide paid sick leave to employees who are unable to work due to a Covid-19 related illness, the need to quarantine because of exposure, to care for a family member who is ill due to Covid-19, or to care for a child because of school closure related to Covid-19. 

However, employers may voluntarily choose to provide paid sick leave to employees for Covid-19 related reasons. The Consolidated Appropriations Act, 2021, extended the employer tax credits for paid sick leave and expanded family and medical leave voluntarily provided to employees until March 31, 2021.

To voluntarily provide paid sick leave, or not to pay, that is the question.

The Pros of Extending Paid Sick Leave

• Covid-19 infection rates continue to rise and the need remains.
• Paid leave slows the spread. Providing leave to employees who test positive or exhibit symptoms will slow the spread of the disease generally and within your workplace. A mass infection resulting in a large number of employees who are unable to work could have significant disruption to your operations or force closure entirely.
• The financial loss, assuming you meet the tax credit requirements, is not significant in the long-run. Of course, the business will have to pay the cost upfront, but will recover most if not all of it in the form of tax credits. 

The Cons of Extending Paid Leave

• The tax credits aren’t guaranteed. In order to receive the credit, employers must be diligent in ensuring they meet IRS requirements for the credit.
• In order to meet IRS requirements for the tax credit, employers must diligently satisfy numerous administrative requirements, which is an administrative cost of the leave.
• In drawing the parameters for eligibility for paid leave, you may open yourself up to discrimination claims. Thus, it is important to have a clear plan, articulate and communicate it well, and administer it consistently.
• Providing extensive leave, paid or unpaid, could result in significant work disruptions. Employers may consider providing only emergency paid sick leave and not the full 12 weeks of EFMLA for childcare and school closures to meet the need to curb the spread.

Practical Tips:

• Conduct your cost/benefit analysis of providing paid leave immediately and timely communicate your decision to your employees.
• Ensure that your supervisors understand the new rules, if any, and that leave is administered consistently. 
• Remember that other employment laws are still in effect, such as general paid sick leave accrual, vacation accrual, and disability discrimination laws. 
• Closely monitor developments in Congress in the new term as additional changes may appear after President-elect Biden’s inauguration.