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Will Congress Extend Families First Act Leave into the New Year?

As employers are well aware, the Families First Act Coronavirus Response Act (FFCRA) was enacted earlier this year to provide paid and partially paid leave to a massive swath of eligible employees working for businesses with fewer than 500 workers. The law provides for up to 80 hours of paid sick leave for employees who are diagnosed with COVID-19, experiencing symptoms and seeking a diagnosis, or advised by a healthcare provider to self-quarantine.

It also provides 80 hours of leave at a lesser rate of pay to employees who are needed to care for another family member in quarantine or suffering from COVID-19, and potentially provides an additional 10 weeks of leave for any employees who are having to care for children due to the closure of schools or lack of available childcare. Of course, there are exceptions and nuances to the foregoing, but the biggest “exception,” if you will, is that the law’s benefits expire at the end of the day on December 31, 2020.

Employers across the country are frantically asking each other—and their lawyers—whether there’s any chance that Congress will extend the FFCRA into the new year. Lawyers are asking themselves the same questions, and the bottom line is that right now, no one has any clear answers.

For months, lawyers and human resources professionals have speculated that the law would be extended if the pandemic continued; and this summer, the House of Representatives passed the HEROS Act, which included an extension. However, the Senate never took up the HEROS Act, and now many are beginning to openly question whether the FFCRA will survive the end of the year.

There is precious little information about what is, and is not, included in the latest relief package being debated in Congress. The most up-to-date source of terms in the relief package, named the Bipartisan Emergency COVID Relief Act of 2020, as of December 15, did not include any extension of FFCRA benefits. Since the release of the language, at least one Democratic Senator has openly argued that Congress should amend the package to include an FFCRA extension in the relief bill, but it is unclear if there is any widespread support for the extension.

The question whether the law will be extended is significant to businesses nationwide as they plan their budgets and begin to identify revenue targets and other projections for the new year. Obviously, continuation of FFCRA benefits will represent the extension of what many employers regarded as a regulatory blitzkrieg that took up a massive amount of time and attention in the summer of 2020. However, as employers became accustomed to the law and the IRS began providing guidance on claiming tax credits, many employers adapted to the law. In certain ways, the existence of the FFCRA helped employers avoid tougher decisions, such as whether to lay off low-wage workers who missed weeks of work without a clear indication of when they would be able to return.

The law may also have kept certain workers in the workforce, comfortable with the knowledge that they could obtain some measure of paid leave to care for their family members if it was needed. Some employers who slowly warmed up to the concept of paid leave reimbursed by the government are now wondering what they will do with sick workers if the law does not continue—and rightfully so, given that the Americans with Disabilities Act does not clearly apply to all cases of COVID-19 and the Family and Medical Leave Act (FMLA) may not clearly apply to all cases, either. Although it may seem like additional flexibility will flourish in the wake of such a complicated law, employers without federally reimbursed paid leave in their tool boxes will likely go back to a paid and unpaid sick-leave system that can pose risks of discrimination lawsuits, and could, perversely, cause more confusion than the FFCRA did.

Whatever your view of FFCRA leave, it’s still too soon to know what will happen. Even if the end-of-the-year stimulus does not include an extension of FFCRA leave, it seems likely that the incoming administration will seek to reinstitute the law, and possibly fashion a retroactivity clause, though the complexities in doing so are many. For those who really did not enjoy learning the FFCRA, the news could be worse: Many see the FFCRA as a blueprint for a permanent paid leave law in the United States, and the new administration could seek to take the template and engraft it for all time onto the FMLA.

Watch this blog for more updates. As we learn the developments, we will provide further guidance to north Alabama’s employers.

Items on this web page are general in nature. They cannot—and should not—replace consultation with a competent legal professional. Nothing on this web page should be considered rendering legal advice.

© 2020

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