Employers May (NOT Must) Continue To Provide FFCRA Leave—IF This Bill Is Signed

As employers know, the Families First Coronavirus Response Act (FFCRA) requires certain employers to provide their employees with paid sick leave or expanded family and medical leave for specified reasons related to COVID-19.

This year, employers have worked hard to figure out how to calculate employee pay under the FFCRA and, in some cases, whether or not they are exempt from FFCRA requirements.

The FFCRA expires on December 31, 2020. But, as my partner Eric Meyer told you, over the weekend, the House and Senate reached a deal on a $900B stimulus package that appeared to impact the FFCRA.

Now that Congress published the text of the bill, we see that employers may continue to provide FFCRA leave (both paid sick and paid family leave) until March 31, 2021, and collect tax credits. Further, the extension does not require an employer to replenish an employee’s FFCRA leave that has the employee has already exhausted.

In other words, continuing to provide leave under the FFCRA is voluntary on the part of employers. And, employers need not provide additional FFCRA leave to employees who have already used their bank of leave.

However, this bill is held up since, in unexpected news, President Trump failed to sign it, decrying the amount of the stimulus checks as inadequate.

Employer Takeaway

Employers, stay tuned. There will be much to consider when and if this bill passes—

Will your business continue to provide leave under FFCRA?

If so, how will you ensure your business provides this leave consistently and uniformly? Employers want to remain mindful of any discrimination risks if extending FFCRA leave into 2021.

Does your current policy allow for extended FFCRA, or must you extend it?

If you do not continue to provide FFCRA leave, how will you handle sick employees who don’t have any paid leave under your current policies?

While state and/or local sick leave may be available, remember that FFCRA was intended, in part, to enable sick and/or exposed employees to take paid leave to stay home to stop the spread of COVID-19 in the workplace and/or take care of a child whose school or daycare is closed.

There is no right answer here, and now, there are more questions.

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Amy Epstein Gluck

Amy Epstein Gluck has represented individuals and corporate clients in Virginia, Washington, D.C., and various federal district courts for more than twenty years. Ms. Epstein Gluck’s current practice areas include employment law—advising on and drafting employment agreements; handling employment negotiations, severance agreements, noncompete and nondisclosure agreements, “wrongful terminations” and other EEO matters; representation at the EEOC level; advising employers about discrimination laws and how to remain in compliance, and employment negotiations.