Government-sponsored COVID-19 leave is over. Should employers offer it anyway?

As COVID-19 swept the country in 2020, the United States government enacted the Families First Coronavirus Response Act (FFCRA) that gave workers expanded protections and covered additional sick leave and family leave for COVID-related reasons.

The new stimulus package passed on Dec. 21, 2020, did not extend FFCRA's end date but allowed employers to claim a payroll tax credit through March 31, 2021.

In other words, employers are no longer required to provide employees with emergency paid sick leave or extended family and medical during Jan. 1, 2021, through March 31, 2021, but may choose to do so at their own discretion.

This leaves employers in a quandary. How should employers handle employees who contract COVID-19, and should they foot the bill to continue offering extended paid leave?

What did FFCRA mandate?

Under FFCRA, private employers with fewer than 500 employees and certain public employers were required to provide their employees with (a) 80 hours of emergency paid sick leave for specified reasons related to COVID-19 and (b) up to 10 weeks of job-protected expanded family and medical leave to care for a child whose school or child care was unavailable due to COVID-19 related reasons.

The Act also covered employers providing paid time off and made them eligible for a dollar-for-dollar tax credit to offset their payroll expenses, including health insurance costs.

These provisions went into effect on April 1, 2020, and expired on Dec. 31, 2020.

Without the extension, employees are not entitled to extra protections for COVID-19.

"With that said, a lot of things are in flux," says Joshua C. Black, a Phoenix-based employment law attorney. "There is a new administration coming in, and there could be a drastically different approach taken in the coming weeks and months."

Black believes that small businesses need to look at the current situation as "an opportunity to collaborate with employees, build an on-going rapport with staff, and maybe not just look at the bottom-line."

Reasons to offer extended leave

According to the CDC, the virus has infected 23 million people in the United States. The current forecast shows cases continuing to rise.

"Employers can require a COVID-19 infected employee to stay home," says Black. But when it comes to disclosing their positive test results, employers will often have to rely on the employee's word.

Without covered leave, infected employees might feel compelled to work and hide their own positive test results. "Employers have the duty to keep the workplace safe," says Black. Extending leave will lower the risk of spread.

An exercise in goodwill

Offering extended leave is also a prime opportunity for small businesses to exercise goodwill to their employees.

"Businesses can be fair and helpful to employees who did not take the time prior to Dec. 31, 2020, but now need the time for Covid-19 reasons," says Juliet Burgess, employment attorney and founder of Burgess Employment Law.

According to Burgess, keeping employees on the payroll has added benefits. It also allows employers to take advantage of the payroll tax credit and, at the same time, build morale and culture in the workplace.