Thursday, December 31, 2020
As the dust settles on the tumultuous journey of the final 2020 COVID-19 relief package, it is now clear that as employers with fewer than 500 employees move into 2021, they will no longer be
legally required to provide employees with leaves of absence under the two leave laws Congress passed last March as part of the Families First Coronavirus Response Act (FFCRA). Since April 1, both of these laws, the Emergency Paid Sick Leave Act (EPSLA) and the Emergency Family and Medical Leave Expansion Act (EFMLEA) have provided employees with paid and job-protected leaves of absence for qualifying COVID-19-related reasons, while providing employers with the ability to receive tax credits against the costs of these benefits. Both were enacted with Dec. 31, 2020, sunset provisions. Although Congress could still conceivably do so in later legislation, it has not extended FFCRA’s leave entitlements into 2021. This does not, however, end the story for
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After months of negotiations, on December 22, 2020, Congress overwhelmingly passed a bi-partisan COVID-19 relief package – the Consolidated Appropriations Act, 2021 (“CAA 2021”) – that includes approximately 900 billion dollars in various pandemic-related relief measures. President Trump signed the legislation on Sunday, December 27. While encompassing nearly 5600 pages of text, very little of the statute focuses on the closely-watched leave entitlements in the Families First Coronavirus Response Act (“FFCRA”) created by Congress earlier this year. These leave entitlements, which became effective on April 1, 2020, are still scheduled to expire on Thursday, December 31, 2020.
As we discussed at length in previous Legal Alerts (available here), the FFCRA created two separate paid leave provisions related to COVID-19 – the Emergency Paid Sick Leave Act (“EPSLA”) and the Emergency Family and Medical Le
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As 2020 comes to an end and we seek to close the books on what can only be described as an unprecedented, exhausting year, many employers are wondering what happens to the COVID-19-related benefits provided through the Coronavirus Aid, Relief, and Economic Security (“CARES”) Act and Families First Coronavirus Relief Act (“FFCRA”), some of which have either already expired or are due to sunset on December 31st. While the fate of this legislation hung in the balance for a few tenuous weeks, as Congressional leaders duked out the details of another stimulus package, in a last minute push, Congress passed a new $900 billion stimulus bill, which, after additional delay, was finally signed into law by President Trump on December 27th.
Applies retroactively to effective date of CARES Act
Credit increased to 70% of qualified wages; cap on credit increased to $28,000. The CARES Act provided for a refundable payroll tax credit of 50% of certain “qualified wages”, capped at $5,000/employee (50% of up to $10,000 of qualified wages for all calendar quarters). The Act increases the credit cap from $5,000 for the year to $7,000 (70% of $10,000) for any calendar quarter.[3] Accordingly, the Act will increase the maximum amount of credit available in 2021 for each employee from $5,000 to $28,000.
PPP borrowers may receive the tax credit. The CARES Act denied the employee retention tax credit to any employer that receives a loan under PPP, and defined the term “employer” expansively, potentially causing acquiring corporations with employee retention tax credits to lose or recapture those tax credits if they acquired a target company that had received a PPP loan.[4] The Act permits an employer that receives a
Who Needs to Know
All employers covered by the FFCRA, employers attempting to recall or hire employees currently receiving unemployment benefits and possibly eligible for extended benefits, and employers who may conduct future furloughs, layoffs, or job eliminations.
Why It Matters
The $900 billion stimulus was passed on the eve of the expiration of several key CARES Act benefits and will have an immediate impact on employers and workers as the calendar turns to 2021.
Late on December 27 and nearly a week after being passed by Congress, President Trump finally signed the Consolidated Appropriations Act of 2021 (the Act) into law. In addition to funding the federal government through the end of September 2021, the Act also allocates $900 billion to COVID-19 relief. Employers will find at least two provisions of the Act particularly interesting: an extension of federal unemployment insurance benefits assistance and tax credits for COVID-19-related leave (but no corresponding mandat