FFCRA's December 31 Expiration - Ways You Can Prepare
The Families First Coronavirus Response act (FFCRA), which took effect April 1, requires covered employers to provide eligible employees with temporary job-protected paid sick leave and paid expanded family and medical leave due to certain qualifying reasons related to the COVID-19 pandemic. The FFCRA has a sunset date of December 31, 2020.
The intent of the FFCRA was to discourage employees from coming to work while potentially exposed to, or carrying, the COVID-19 virus, and to enable them to care for a family member infected with COVID-19 or a child affected by a COVID-19-related school closure. While Congress has considered extending the FFCRA (e.g., The HEROES Act), nothing has been agreed to or signed yet. If Congress fails to act before December 31, employers must determine how they will address the continuing impact of COVID-19 without the FFCRA in place.
The FFCRA is scheduled to end during a time when COVID-19 cases are rising. The lack of job-protected leave increases the likelihood that employees will choose to come to work sick or when they should be quarantining due to exposure to COVID-19 in order to avoid losing part of their paycheck, potentially spreading the virus. This leads to more employees missing work due to the infection, causing significant disruptions to the workplace, forcing additional burdens on other employees and creating an undue hardship on the business. This also negatively impacts a customer-based work environment. Businesses could lose customers if they observe sick employees close by. In addition, sick employees are often less productive and produce lower-quality work.
Also, without the availability of paid leave for COVID-19 child care issues, parents may need to scramble to find child care providers at a moment's notice due to unexpected school closures. Therefore, employers should take action now.
In the absence of a law extending the FFCRA's provisions, employers need to be proactive and prepare for the sunset of the FFCRA. The better prepared the employer is, the better it can help manage employee's expectations. Below are measures employers can take in advance of the FFCRA's expiration:
Clearly communicate to all employees about the upcoming expiration of the FFCRA. While many employees may be familiar with the FFCRA, they may be unaware that future FFCRA requests are not permitted after December 31. Provide as much warning of the pending expiration as possible.
Designate an individual or department to review and respond to any questions surrounding the FFCRA's expiration. This will help ensure a consistent and fair approach. Carefully document any responses.
Thoroughly examine FFCRA Leave Request Forms to ensure the form is filled out completely and does not include a request for leave that begins after the FFCRA's expiration date. In a case where a request is for a period after December 31, consider speaking with employment law counsel immediately.
Remove any existing FFCRA-specific policies from an employee handbook, intranet or other locations. Prior to removing, communicate to employees, in writing, that such policies are rescinded and are no longer effective after December 31, 2020. Make sure all managers and supervisors are aware of this action and any resulting changes to leave-related processes.
Direct employees to any new or relevant leave policies, if applicable.
Train all managers and supervisors on properly responding to FFCRA leave requests that are submitted near or after December 31. Any improper actions may be perceived as retaliation or discrimination and may land the employer in hot water.
Properly track FFCRA leave usage because employees who take some, but not all, of their expanded family and medical leave by December 31, 2020, may then take leave under the Family and Medical Leave Act (FMLA) (assuming they are eligible and have a qualifying reason), as long as the total time does not exceed the 12 workweeks in the 12-month FMLA period.
Review and ensure compliance with state and local leave ordinances that may require covered employers to provide leave for reasons similar to the FFCRA, e.g., public emergency leave, quarantine leave, paid sick leave.
Make employees aware that they may be eligible to take leave under the federal FMLA and/or its state counterpart that allows them to care for certain family members for serious health conditions and the procedure for requesting leave.
Create or review procedures for handling accommodation requests under the Americans with Disabilities Act (ADA) (or its state or local equivalent). It is safe to assume that without protected paid leave, accommodation requests will increase. Engage in the interactive process by having an open dialogue with employees about their situations and their needs. Even though an employee would no longer receive the same job protection afforded under the FFCRA, an employee who experiences a serious COVID case or has long-term health problems as a result from COVID may be entitled to protections under the ADA if this is a disability that impacts their ability to complete the essential functions of the job. This may require an employer to explore whether other arrangements can be made, such as unpaid leave, a modified schedule or remote working. The EEOC is encouraging employers to be flexible and creative.
If no leave or accommodation protections are available to an employee, consider consulting with employment counsel prior to denying a leave or accommodation request to ensure no other protections apply.
Consider offering employees a paid leave (in place of FFCRA leave), even when not legally obligated to do so, in order to encourage workers to stay home when they are experiencing symptoms of COVID-19 or have been exposed in order to reduce transmission. If it is not financially feasible to provide paid leave, consider offering protected unpaid leave time. The additional leave could apply universally and not be limited to COVID-19-related reasons.
Consider allowing employees to carry over more company-provided paid time off from 2020 to 2021 than typically is required under company policies. It is likely that employees' travel or holiday plans were disrupted in 2020, so this will provide employees with the opportunity to use their paid time off in 2021.
Offer flexible working arrangements, such as remote working, as appropriate to help stop the spread of COVID-19. Consider allowing an employee to work a flexible work schedule or job-sharing arrangements if feasible.
Educate employees on any benefits available to ease the stress of their situation, such as employee assistance program (EAP) resources.
Failure to prepare for the FFCRA's expiration may lead to:
Distressed employees who are denied FFCRA leave without knowing the FFCRA expired (which can create confusion and uncertainty, which in turn may lead to lower employee engagement or retention);
Untrained supervisors or managers who take unlawful or inappropriate actions, such as informing an employee they may take FFCRA leave when no such leave is available;
Employees showing up to work when they are sick because otherwise they will be forced to give up their pay to deal with health-related concerns or care for a family member; and
An increase in employment lawsuits filed under FFCRA (even if the employer is technically in the right, in most cases employees do not have to go to the Department of Labor first) or under state and local antidiscrimination and leave laws that may offer an employee additional protections beyond the FFCRA (e.g., laws that prohibit discrimination against an employee based on their caregiver status).
Even if the FFCRA expires with no extension or replacement, employers need to:
Maintain the information employees provided in support of their FFCRA leave requests for four years;
Understand that an employee may not be terminated, disciplined or otherwise discriminated against for taking leave under the FFCRA or for filing a complaint or instituting a proceeding under or related to the law, or intending to testify in a proceeding;
Provide leave under an applicable federal, state or local law if an employee is eligible and meets the qualifying conditions;
Engage in the interactive process to explore accommodations requested;
Continue to monitor federal, state and local leave laws related to COVID-19;
If the FFCRA is amended be on the alert for any new notice-posting requirements and ensure any notice is conspicuously displayed and communicated to all employees; and
Prepare business operations for fluctuations in staffing due to absences as a result of COVID-19.