The Legal Brief: Continuation of Emergency Paid Sick Leave?

As you may be aware, the Families First Coronavirus Response Act (“FFCRA”) took effect on April 2, 2020 and is set to expire on December 31, 2020.

The FFCRA has two parts:  (1) it provides paid FMLA leave for employees who had childcare duties due to their child’s regular childcare provider or school being closed due to COVID-19 (the “Expanded FMLA”) and (2) it allows for up to 80 hours of Emergency Paid Sick Leave if an employee seeks a medical diagnosis for COVID-19, is diagnosed with COVID-19, or is caring for a child or individual due to COVID-19 (the “EPSL”).

We have not heard any updates from Congress as to whether they will extend the FFCRA after December 31, 2020.

Question: In the event Congress does not continue the FFCRA benefits for the 2020-2021 school year, can the district extend FFCRA benefits to avoid penalizing employees who may need leave due to COVID-19?

Answer:  Yes.

Next question, how?

Because FFCRA leave entitlements include paid leave, to avoid a gift of public funds issues, the Board is required to make findings in the form of a resolution that the extension of paid benefits is for a public purpose.  However, an extension of benefits by the district is not legally required, therefore, there is an opportunity to make changes to the nature of the paid leave benefits and the eligibility (including documentation) requirements.

With so many districts having faced significant personnel issues due to the Expanded FMLA (10 weeks paid leave), it is our recommendation if your district decides to continue FFCRA benefits, it only continue the EPSL part (10 day paid emergency paid sick leave), not the Expanded FMLA.

The Resolution form linked below provides, in the event Congress does not extend the FFCRA for the 2020-2021 school year, a continuation of EPSL paid leave for the 2020-2021 school year (“District EPSL”).  The Resolution also gives the superintendent the authority to determine the compensation allowed for District EPSL and eligibility requirements with regard to required documentation for leave.  Finally, the resolution expressly provides that Expanded FMLA benefits will not be continued if not extended by Congress after December 31, 2021.


The form Resolution may be modified.  If you have questions, please call Sara Leon & Associates.


Article written by Michelle Alcala.