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FFCRA Expired: Now What?

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Tax Credit Extended, Not FFCRA Leave
The FFCRA provided a refundable payroll tax credit for mandated paid sick and family leave. The bill extends the tax credit through March 2021 for employers that continue to voluntarily offer paid sick and family leave to their employees.

"Employers should focus on employees who are currently on an FFCRA leave and the fact that the statute is set to expire on Dec. 31," said Carrie Hoffman, an attorney with Foley & Lardner in Dallas. "They should be communicating with employees who are on leave and what the expectations are about returning to work or whether their leave would convert to an unpaid FMLA [Family and Medical Leave Act] leave."

She added that employers should also consider whether they have to provide accommodations under the Americans with Disabilities Act, depending on the reason for the employee's absence. This might particularly be the case for so-called COVID-19 "long haulers," whose symptoms of the coronavirus have persisted.

The FFCRA not being extended "does not mean that COVID-19 is gone or that companies will have fewer COVID-19-related scenarios in the workplace," said Adam Kemper, an attorney with Greenspoon Marder in Ft. Lauderdale, Fla.

"Thus, employers should be prepared to have a plan in place for 2021 that contemplates COVID-19-related leave scenarios and be prepared to comply with applicable state and federal leave laws," he said. "To the extent such laws do not extend leave for as long as an employee needs due to COVID-19, then employers should be prepared to update their own private leave policies to ensure employees have adequate protection to take leave when necessary so as to avoid spreading the virus to others, recuperate from the illness, if applicable, and return to the workforce."

Read the rest of the article:
Coronavirus Relief Package Includes Key Workplace Provisions
SHRM | Dec 27, 2020

Answers to the Most Common Questions Employers are Asking Now That FFCRA Leave is Purely Voluntary
Littler via SHRM | Jan 2021

See the new DOL FAQs #104 & 105
DOL | Dec 29, 2020

Request for Coronavirus-Related Paid Sick Leave
Request for Coronavirus-Related Child Care Leave
COVID-19 Paid Sick and Child Care Leave Policy
SHRM Samples

Note: For articles specific to California, scroll down to the section titled California Employers.

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Law Firm Articles

Employer Considerations For Determining Whether To Continue Providing FFCRA Leave After Law’s Expiration
Fisher Phillips | Jan 2021

The DOL’s Updated Guidance on the Expired FFCRA—It Will Still Enforce Pre-December 31, 2020 FFCRA Violations
Dickinson Wright | Jan 2021

Have You Thought About ... What the Limited Extension to the FFCRA Means to Employers?
Brownstein Hyatt | Jan 2021

California Employers

How Changes to the CARES Act and FFCRA Affect California Employers
Payne & Fears | Jan 2021

What the Expiration of COVID-19 Paid Leave Laws Means for California Employers
Sheppard Mullin | Jan 2021

Expiration of the FFCRA & California COVID-19 Supplemental Paid Sick Leave - What now?
Dentons | Dec 2021

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Unless Congress acts, the Families First Coronavirus Response Act (FFCRA) paid-leave requirements will expire at the end of the year. But even if they expire, organizations that have generous paid-leave policies and those in states that have paid-leave laws will continue to grant time off to employees who have COVID-19 or whose children's schools or child care providers are closed.

"Most states may be waiting to see what the federal government will do" before expanding their laws further, said Chelsea Mesa, an attorney with Seyfarth in Los Angeles. "It's possible states and local jurisdictions will expand their own laws past Jan. 1 or expand them to cover more employers if the FFCRA is not extended. It's unfortunately very unclear."

Nonetheless, Rob Duston, an attorney with Saul Ewing Arnstein & Lehr in Washington, D.C., predicted that Congress will extend the deadlines for both types of FFCRA leave. "If this does not occur before Dec. 31, it could be made retroactive," he said. "The new administration is going to be strongly supportive of this type of leave."

Read the rest of the article:
What If FFCRA Expires at the End of the Year?
SHRM | Dec 2020

Law Firm Articles

All FFCRA leave benefits—including Emergency Paid Sick Leave (EPSL) and Expanded Family and Medical Leave (EFMLA)—were created by a time-limited statutory authority and are set to expire on December 31, 2020.  This means that, currently, employees are not entitled to receive EPSL or EFMLA past December 31, 2020, and employers will not receive reimbursement from the federal government under the FFCRA for leave taken after December 31, 2020.
FFCRA Leave – What Employers Need to Know For The End of 2020
Bowditch | Dec 2020

Once reminded that the FFCRA's protections might end on December 31, employees may try to take advantage of remaining FFCRA-covered leave before the Act's expiration, such as to care for children home from school over the holidays. However, employers may still require certification that leave is being taken because a school or daycare is closed, or child care provider is unavailable, because of a COVID-19 related reason in order to qualify for FFCRA leave.
Planning Ahead for the End (For Now) of the Families First Coronavirus Response Act
Squire Patton | Dec 2020

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.
Three Steps to Prepare Your Workplace for the End of the FFCRA
Fishel | Nov 2020

The employer should be cautious in simply letting an employee go when leave entitlements expire. Instead, the employer may want to consider going through an interactive process with the employee to determine whether a reasonable adjustment can be made—such as additional time off, a modified schedule, or a work-at-home arrangement— in order to care for someone who is ill, to care for children whose schools have gone remote, or to protect themselves because they may be in a high-risk group and are anxious about returning to the workplace.
Emergency Leave Running Out: What If Employees' Kids Are Still Not Back To School?
Seyfarth | Oct 2020

Related Reading

Will Congress Extend FFCRA Paid Sick and Paid FMLA Leave into 2021?
Littler | Oct 2020

Index of COVID-19 Express Requests
SHRM | On-going

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