December 30, 2020 2021 EPSLA/EFMLEA Leave Status
KEEPING YOU INFORMED…
Now that the President has signed Congress’ recently-passed COVID-19 relief bill, we are writing to advise you as to the status of the federal COVID-19 leaves (the Emergency Paid Sick Leave Act (“EPSLA”) and the Emergency Family and Medical Leave Expansion Act (“EFMLEA”)), which are set to expire at the end of the day on December 31, 2020.
In a nutshell, the new law permits employers to voluntarily continue to provide EPSLA and EFMLEA leave benefits, from January 1, 2021 until March 31, 2021, to employees who did not already exhaust their leave entitlement for these benefits during 2020. For employers that voluntarily continue to provide these leaves, the eligibility and implementation rules for the EPSLA and EFMLEA leaves remain unchanged including, among other things, the reasons for which the leaves may be taken. If employers choose not to voluntarily provide the leaves, the EPSLA and EFMLEA leave benefits will no longer be available to their employees.
In contrast, the New York State COVID-19 leave does not expire and its eligibility and use requirements remain unchanged, notwithstanding the change in the federal COVID-19 leaves’ status.
Private sector employers that voluntarily provide the EPSLA and EFMLEA leave benefits from January-March 2021 will continue to receive the associated payroll tax credits. These credits are unavailable to public sector employers.
As for next steps, you should determine whether you want to voluntarily continue to provide EPSLA and EFMLEA leave benefits to eligible employees from January 1, 2021 – March 31, 2021. There are a number of things for private and public sector employers to consider when making this decision, so we encourage you to contact us to discuss them. If you decide to continue providing these leave benefits, there is no statutorily-dictated mechanism in the new law for adopting the decision, although your company/entity may already have existing laws/rules or mechanisms in place for codifying employee benefits. In addition, if you are using a form for processing COVID-19 leave requests, it should be reviewed and potentially updated depending upon whether you decide to provide EPSLA and EFMLEA leave benefits in 2021.
If you have any questions regarding the above, would like to discuss the various considerations for making your decision as to whether to continue to provide these leaves or how your decision will affect employees’ COVID-19 leave eligibility/options in 2021, please contact Alyssa Zuckerman or one of our other attorneys by calling (631) 694-2300.
THIS MEMORANDUM IS MEANT TO ASSIST IN GENERAL UNDERSTANDING OF THE CURRENT LAW. IT IS NOT TO BE REGARDED AS LEGAL ADVICE. THOSE WITH PARTICULAR QUESTIONS SHOULD SEEK THE ADVICE OF COUNSEL.
 For more information on EPSLA and EFMLEA leaves generally, including how much leave is available for each and rates of pay, please see our April 3, 2020; April 15, 2020; August 28, 2020; and September 23, 2020 client memoranda (available at: www.lambbarnosky.com).
 As a reminder, the primary reasons for which COVID-19-related federal leaves may be taken include when an employee is unable to work or telework because the employee:
- is subject to a federal, State or local quarantine or isolation order related to COVID-19;
- has been advised by a health care provider to self-quarantine for COVID-19 related concerns;
- is experiencing COVID-19 symptoms and is seeking a diagnosis;
- is caring for an individual subject to an order described in #1 or self-quarantine as described in #2;
- is caring for his/her child whose school or place of care is closed, or whose child care provider is unavailable, due to COVID-19 related reasons; or
- is experiencing any other substantially-similar condition specified by the U.S. Department of Health and Human Services.
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© Lamb & Barnosky, LLP 2021