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Labor Law: Paid sick leave law not extended by Congress, but employers can voluntarily provide leave for tax credits
Labor Law

Labor Law: Paid sick leave law not extended by Congress, but employers can voluntarily provide leave for tax credits

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RTD Metro Business law columnist, Karen Michael.

The first national paid sick leave law is now gone. But employers can voluntarily provide leave to workers for the next three months in exchange for a payroll tax credit.

At the start of the pandemic, Congress passed an amendment to the Family Medical Leave Act known as the Families First Coronavirus Response Act. It provided up to 80 hours of paid sick leave and additional paid time off for qualifying public health emergency leave for qualifying employees working for organizations with fewer than 500 employees.

The Families First Coronavirus Response Act expired on Dec. 31, and Congress did not extend it.

However, Congress approved and the president signed into law the Consolidated Appropriations Act of 2021, which extended employer tax credits for paid sick leave and expanded family and medical leave to companies that voluntarily provide it to employees until March 31.

The U.S. Department of Labor issued updated guidance for employers so they could understand their rights and obligations in 2021 for coronavirus-related leave.

For employees who were eligible for leave under the Families First Coronavirus Response Act in 2020 but didn’t use all or part of the leave, the company is not required to provide paid sick leave or expanded family and medical leave after Dec. 31.

The department noted that the employer may voluntarily decide to provide such leave. In doing so, the business is entitled to extended employer tax credits for paid sick leave and for expanded medical leave voluntarily provided to workers until March 31.

While the tax credits were extended, the employee’s entitlement under the law to take the leave was not extended beyond Dec. 31.

The Internal Revenue Service can provide information for employers on refundable tax credits for qualified leave wages at http://www.irs.gov/coronavirus/new-employer-tax-credits.

According to the guidance, companies were required to honor previously approved paid leave, including leave related to child care, through the end of last year. Based on the guidance, it does not appear employers are required to honor previously approved leave under the Families First act after that point.

If employers plan to voluntarily offer paid leave through March 31, they should issue an internal policy guidance on eligibility for employees.

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The Labor Department also issued guidance, under the Fair Labor Standards Act, related to issues specific to those who work part of the day at home and part of the day at the office as well as to 24-hour onsite home healthcare services.

The department opined on whether time spent traveling from home to the office is compensable where an employee teleworks part of the day and then travels to the office for the remainder of the workday, or vice versa. With so many employees teleworking, employers have been concerned that those who work partial days from home might be entitled to pay for the commute to the workplace based on the continuous workday legal theory.

The Labor Department concluded that “when an employee (a) chooses to perform some work before traveling to the office or (b) chooses to perform work at home after leaving the office, and in either case has sufficient time in between her telework and office work periods to use effectively for her own purposes, the time she spends traveling between home and office is not compensable.”

The time may be compensable, however, if the employer sets strict requirements on the timing of the work. For example, if the company states the employee must work from 8 a.m. to noon at home and then 12:30 p.m. to 4:30 p.m. in the office, the travel time may constitute compensable time as it would appear to be continuous work.

The department’s second guidance is industry-specific for in-home caregivers who work 24-hour shifts. The agency opined that employers paying premium pay can exclude the amount from the regular rate of pay calculation for overtime.

The department’s Occupational Safety and Health Administration also announced late last year that it recovered $3.849 million in fines for coronavirus violations through Dec. 24 arising from citations issued from 295 inspections. Of the inspections, 100 were from New Jersey companies and 64 from New York. None was from Virginia.

Employers can expect a myriad of new coronavirus-related workplace issues in 2021, including COVID19-related litigation and regulations, issues concerning leave and vaccinations and continued shutdowns and operational controls.

Karen Michael is an attorney with Richmond-based KarenMichael PLC. She can be reached at kmichael@karenmichaelconsulting.com.

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