Planning for the Finish of the FFCRA

Monday 14 December 2020

During 2020, we provided updates on the enactment of the Family First Coronavirus Response Act (FFCRA), its By-Laws, and its amended rules. In these updates, we noted that the FFCRA, which is granting emergency paid and paid family leave to public sector workers and private employers with fewer than 500 employees for certain COVID-19 reasons, would go under on December 31, 2020, if not renewed by Congress. With just over two weeks left in the calendar year and no legislative activity indicating that Congress is planning an immediate extension of the FFCRA, employers are advised to consider the implications of the upcoming deadline and, if necessary, to discuss with employees about their obligations to return Communicate work.

Since the vacation covered by the FFCRA expires with the natural expiry of the FFCRA, this also applies to the tax breaks, with which the burden on employers is to be offset by the provision of paid vacation. Even if an employee is only on FFCRA-covered family leave for a few weeks to provide childcare due to the closure of their child’s school or daycare center, the employee’s entitlement to paid vacation ends on December 31, 2020, regardless of whether or not the Employee has exhausted his statutory vacation allowance. If an employee who has not taken any of the up to 80 hours of paid emergency leave (EPSL) available under the FFCRA provides a valid reason that otherwise entitles him to the EPSL on December 30, the employee would also only be able to use as many hours of EPSL as he or she would have worked before 11:59 p.m. on December 31st. After December 31, employees are only eligible for COVID-19 time off if they are eligible for unpaid benefits Family and Medical Leave Act (FMLA) leave is eligible for a time off under a state-paid or unpaid sick leave or Family Leave Act or has a paid time off (PTO) or is allowed to take leave according to a discretionary employer policy. Employers should be sure that workers understand this, especially if they decide to use the PTO at the end of the year. The FFCRA’s job restoration requirements also expire on December 31, 2020. This means that employees cannot return to work on January 1st (or on their next regular working day afterwards) and have no other right to protection. In their free time they can be terminated due to non-return. It is therefore critical to manage employee expectations before their FFCRA eligibility expires.

Employers are also encouraged to communicate in advance how they plan to address, if at all, the challenges workers will continue to face in 2021 as the end of the pandemic remains out of sight. Many employees who raise or care for school-age children continue to face virtual and hybrid learning environments that interfere with regular working hours. Without the FFCRA protection, which begins January 2021, many will face the difficult decision of stepping back to oversee distance learning. Employers should consider adding in-person absence, remote working arrangements, or flexible schedules to keep valuable employees after the FFCRA expires.

Once employees are reminded that FFCRA protection may end on December 31st, they can attempt to take the remaining FFCRA vacation before the law expires, for example to look after children who are out of school during vacation return home. However, employers may still require a certificate stating that vacation is being taken because a school or daycare is closed, or the childcare provider is unavailable for a COVID-19 reason in order to qualify for the FFCRA vacation. Ordinary school closings, e.g. B. for the winter break, are not entitled to FFCRA leave. Knowing what questions to ask and what information to request from staff to minimize FFCRA vacation abuse can help you avoid staff shortages in the final weeks of the year.

© Copyright 2020 Squire Patton Boggs (US) LLPNational Law Review, Volume X, Number 349

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