When the federal government passed the Families First Coronavirus Response Act (“FFCRA”) in March 2020, Congress included a sunset provision for December 31, 2020. After that date, school districts (like all employers) would no longer be required to provide to employees an additional 2-weeks of Emergency Paid Sick Leave or expanded access to FMLA for COVID-related situations.

As the end of the year and that sunset deadline approached, Congress finally took action and decided to extend the FFCRA. On December 27, 2020, the President signed into law a coronavirus stimulus and relief bill.

Below are questions and answers for administrators to be aware of as they help their school districts and boards understand what this extension of the FFCRA means and what it doesn’t mean.

What Did Congress Do with the FFCRA?

Technically, the recently signed bill extends the FFCRA until March 31, 2021. But, the extension is entirely voluntary. In other words, as of January 1, 2021, school districts are free to decide for themselves whether they want to continue to offer Emergency Paid Sick Leave and/or expanded FMLA to their employees.

Did Congress Change Eligibility Requirements or Available Leave under the FFCRA?

No. The last-minute action by Congress leaves the original provisions of the FFCRA in place but no longer makes those benefits mandatory. Nothing else changed.

If a school district decides to continue providing benefits under the FFCRA, employees must still meet the same eligibility requirements as before. Full and part-time employees are eligible for up to 2 weeks of paid leave under the Emergency Paid Sick Leave if they are unable to work because of at least one of the following reasons:

  • Government (federal/state/local) Order to quarantine or self-isolate;
  • Advised by health care provider to self-isolate;
  • Symptoms of COVID-19 and seeking medical diagnosis;
  • Caring for family member who is subject to a quarantine/isolation order or who has been advised by a health care provider to self-isolate;
  • Caring for child whose school is closed or child care provider is unavailable.

Likewise, if a school district decides to continue providing benefits under the FFCRA, full and part-time employees who have worked at least 30 days are eligible to use up to 12 weeks of partially paid leave under the expanded FMLA if they are unable to work because their child’s school or place of care is closed due to COVID-19.

Does  the Voluntary Extension Add or Make More Leave Available to Employees?

No. The extension of the FFCRA by Congress did not add any new amounts of leave to either the Emergency Paid Sick Leave or expanded FMLA programs.

If a school district decides to continue providing benefits under the FFCRA, employees do not get another round of available leave to use. In other words, if an employee used one week of paid sick leave because of a quarantine during the fall semester, the employee would only have one week left of paid sick leave for the spring semester if another quarantine became necessary. And, the same holds true for use of expanded FMLA – an employee still has only 12 weeks total of FMLA leave to use.

Did Anything Change with Tax Credits and Recovering the Cost of Paid Leave?

No. School districts remain ineligible to receive payroll tax credits for providing paid leave under the FFCRA. If a district decides to voluntarily continue to provide paid leave to its employees under the FFCRA for COVID-related situations, the district cannot use tax credits or deductions to offset the cost of that leave.

Is Board Action Needed?

No, but it can’t hurt to be clear with employees about what benefits and leave options are being made available. There is no obligation in the recently signed bill for a school district to take formal action through its board when deciding whether to continue to provide benefits under the FFCRA. That said, there is a benefit to the board taking formal action, either in favor or against. Board discussion can help to ensure that your staff and community are on the same page as to what paid leave will be available to employees when COVID-related situations come up. Additionally, a formal vote by the board can help ensure consistent application by administrators in response to leave requests.

What if the Board Already Took Action Prior to Congress Passing the Extension?

Some school districts decided to proactively take board action in November and December, electing to continue providing paid sick leave into the spring semester for employees needing to quarantine because of COVID-related situations. If your board took this type of action, it is recommended that you have legal counsel review the specific language of the Board’s action to ensure that the new legislation does not create an inadvertent and adverse effect.

Moving Forward

Federal and state governmental agencies continue to develop responses to the ongoing public health emergency. At Mickes O’Toole, our Education Department will continue to monitor and provide updates as things change. In the meantime, our attorneys are ready to assist school districts with any questions regarding COVID-19 or leave benefits.

Contact

Natalie Hoernschemeyer

Grant Wiens