On Wednesday, March 18, 2020, the President signed the Families First Coronavirus Response Act into law. Referred to as the FFCRA, the Act created or added paid leave entitlements for millions of Americans and required employers with 500 or fewer employees and all public employers to make immediate changes to leave policies. Since its passage, the Department of Labor and a federal court have made numerous changes to the regulations implementing the Act, including changes to the applicability of the health care worker and emergency responder exceptions, requiring further improvisation by employers. Needless to say, the FFCRA has been one of the most impactful pieces of federal employment legislation in a very long time.
But all of it may be coming to an end. In the beginning, the goal of the Act was to disincentivize employees from entering the workplace while potentially carrying COVID-19, and also to enable them to care for family members either suffering from the virus or affected by school closures. However, the time horizon for an end to the pandemic – at least at the time the FFCRA was passed – appeared to be the end of the year. Additionally, many in Congress did not want to create permanent paid leave obligations for employers. The result is that the FFCRA was made temporary and a built-in expiration date for the Act was included: December 31, 2020.
Congress is currently negotiating another pandemic relief package. One of the many proposals on the table is an extension of the FFCRA through February 2021. However, these talks have been slow, and the parties do not appear close to a deal. Even if a deal is reached, it is unclear whether an FFCRA extension will ultimately be included. This means employers must begin their transition planning as though the FFCRA will expire at the end of the year. If the Act is extended, employers will need to simply move the plans back a few months. Below are three key steps for preparing your organization for a transition out of the FFCRA and a return to standard leave policies.
Remind Employees that the Leave Entitlements are Ending
By now, six months after passage, many employees are familiar with their new leave entitlements. Many will have taken the leave for one of the available reasons or may even be planning to take the leave at some point in the future (e.g. if there is a planned return to remote learning for a certain school district). However, many of these employees are not aware that the availability of leave is ending. Thus, it will be important for employers to give their employees plenty of warning that no FFCRA leave may be taken after December 31, 2020.
This may be most important for any employees who are taking FMLA under the FFCRA to care for a son or daughter attending school remotely. For these employees, the leave will likely expire while their child is home on winter break, meaning they need to begin making arrangements for childcare before the school year resumes in January of 2021.
Change Leave Policies to Reflect the End of FFCRA Leave Availability
When the leave obligations were passed, we recommended that employers make changes to their leave policies to make the implementation of leave obligations clear and standard across each organization. Typically, this was done in a separate policy which included an explicit expiration date of December 31, 2020. However, many employers may have simply made small changes to existing leave policies. To ensure there is no confusion regarding the availability of leave, employers should take formal action to rescind any policies implementing FFCRA leave. This should be done in conjunction with a notification to employees that the leave will not be available in the new year, as recommended above. If any changes were made to the process by which employees notify their supervisors of an absence, these also should be changed to reflect a return to normal procedure.
Plan Ahead for What Categories of Leave Will be Used for Absences Taking Place in the New Year
While the paid leave entitlements may be ending, the pandemic is not. In fact, cases of COVID-19 are on the rise as the US entered a “third wave” in September which has continued through October. This means employees may still get sick and need time away from work to quarantine. To be clear, employers should not require employees with COVID-19 to report to work. Employees may also need to take leave for school closures, the unavailability of childcare, or remote learning arrangements. Because these absences will no longer be covered by the FFCRA, employers need to think ahead to determine which types of leave will cover these absences, if any.
For many employers, particularly public employers, sick employees needing to quarantine will likely have their leave covered under existing sick leave policies. If employees do not have existing sick leave available, employees may need to consider using vacation leave or Paid Time Off (PTO). Employers should remain flexible but remember to enforce their existing policies for leave notification. For instance, employees needing to take leave to care for children under remote learning arrangements may need to take vacation/PTO. FMLA will no longer be available for leave due to the unavailability of school or childcare after December 31, 2020. These requests should be made according to standard vacation/PTO request procedures. Thus, it will be key to remind employees that their FFCRA leave will be ending so that new leave requests can be made in time for the leave to be taken.
As a last resort, if employees do not have any available leave (PTO, sick leave, or vacation leave), employers may need to grant unpaid leaves of absence or temporary remote work assignments. However, employers should consult with legal counsel before granting unpaid leave or temporary remote work arrangements to avoid creating future issues.
We will continue to monitor the negotiations in Washington, D.C. for any developments, including a possible extension to FFCRA paid leave entitlements. In the meantime, employers should begin the process of carefully planning their transition out of the FFCRA era. The attorneys at Fishel Downey Albrecht & Riepenhoff, LLP regularly assist employers with federal and state law passed in response to the COVID-19 pandemic. If you have any questions about this or any other matter, please contact us at info@fisheldowney.com or call 614-221-1216.