As things stand today, the vacation entitlements available under the EFMLA and EPSLA expire at the end of the year.
In March of this year, Congress passed the Families First Coronavirus Response Act (“FFCRA”). Congress passed this legislation in response to the growing threat posed by the COVID-19 pandemic. The legislation included a number of measures to curb the spread of COVID-19, such as the mandate to cover COVID-19-related testing at no cost to plan members, and extended vacation entitlements to prevent sick and potentially contagious people from entering the EU enter workplace.
Related: Paid Vacation Benefits: Trends and Challenges
The FFCRA introduced extended vacation entitlements under the Family and Sick Leave Act (“FMLA”). The Extended Family Leave and Medical Leave Act (“EFMLA”) allows employees of companies with fewer than 500 employees to take leave because they have to look after a child if the school or the child care facility is closed Child carer is not available due to the public health emergency.
In addition, the FFCRA introduced additional paid leave entitlements under the Emergency Paid Leave Act (“EPSLA”). EPSLA offers employees up to eighty (80) hours of paid vacation if they are unable to work (or telework) for any of the following reasons:
- The employee is subject to a federal, state, or local quarantine or isolation order with respect to COVID-19.
- The employee was advised to self-quarantine by a health care provider due to concerns about COVID-19.
- The employee has symptoms of COVID-19 and is seeking a medical diagnosis.
- The employee takes care of a person who is subject to an order in accordance with paragraph 1 or who has been advised as described in paragraph 2.
- The employee will take care of that employee’s son or daughter if the son or daughter’s school or care facility has closed, or that son or daughter’s childcare provider is unavailable due to COVID-19 precautions.
- The worker suffers from another substantially similar condition determined by the Minister of Health and Human Services in consultation with the Minister of Finance and the Minister of Labor.
As things stand today, the vacation entitlements available under the EFMLA and EPSLA expire at the end of the year. There is little chance that Congress will take legislative action to extend the vacation entitlements available under the EFMLA and ESPLA, but there is (at least at this point in time) no indication that it will. and while hope is now emerging (delivery of the COVID-19 vaccine has begun across the country), the need for the FFCRA’s assistance is as there today as it was in March.
If no legislative action is taken, employers will need to consider whether they can offer extended vacation entitlements in the future. This is particularly relevant as schools (as well as a number of industries) remain closed due to the COVID-19 pandemic.
Without definitive legislative guidance, employers should consider their current employment policies and possible obligations under state law when deciding whether / how to host data subjects in the future. Given the continuing need to protect workers and ensure business continuity, employers are urged to remain flexible when dealing with the realities of the pandemic. For example, employers may consider continued opportunities to work from home (if available) or even changed work schedules if it makes sense for both the employer and the employee.
As the New Year approaches quickly, employers should review their current employment policies and ensure they have the processes in place to deal with these situations in the future. While there is certainly hope that the need for a vacation will become contentious under the EFMLA and EPSLA, given the uncertainty about the pandemic and its end, these issues can be widespread well into the New Year.
Kevin Brady, Esq. Is a lawyer at The Phia Group. As a member of the advisory team, Kevin works on general advice, compliance with planning documents, review of contractual loopholes and general compliance issues.
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