As positive COVID-19 cases continue surging throughout the state and across the country, practice owners may be questioning their obligation to provide paid sick leave now that the Families First Coronavirus Response Act has expired.
As of Jan. 1, employers may voluntarily provide emergency paid sick leave or emergency paid FMLA leave under FFCRA. If an employer chooses to voluntarily offer leave, it must be used for the same purposes and subject to the same conditions as originally outlined in FFCRA.
Additionally, Congress’s new legislation, the Consolidated Appropriations Act, 2021, extended tax credits for employers who continue to voluntarily provide paid FFCRA sick leave and expanded family and medical leave to employees until March 31.
The expiration of the FFCRA’s leave requirement does not mean that employers are exempt from paying employees for leave that was taken or requested during the effective period. Employees who have not been paid for FFCRA that was used between April 1, 2020 to Dec. 31, 2020 have two years to file a complaint against their employer.
The FFCRA’s new voluntary provisions do not give employees extra time to take leave. The FFCRA has always provided a maximum of two weeks or 80 hours of emergency paid sick leave and a maximum of 12 weeks of emergency paid FMLA. This means if an employee used one week of EPSL in 2020, they only have an additional week of EPSL to take in 2021.
If the employee used the entire allotment of two weeks or 80 hours of EPSL in 2020, an employer can advise employees to use any accrued, unused paid sick leave or require them to use available vacation or PTO prior to taking any unpaid leave in accordance with the dental office’s written policies.
Employers should also consider, depending on the reason for the employee's absence, whether they must continue providing wages under Cal/OSHA’s Emergency Temporary Standards or provide accommodations under state and federal disability laws. Employees may be entitled to state disability insurance or other state wage-replacement benefits.
Several cities and counties in California implemented their own supplemental paid leave ordinances that include small-employer obligations to close the gaps in FFCRA coverage that also expired with FFCRA. Practice owners are encouraged to monitor and stay up to date with any local ordinances, as some cities and counties may extend or reestablish supplemental paid leave.