Families First Act Expired on December 31, but Voluntary Compliance is Still Permitted
As we previously informed you, on December 31, the Families First Coronavirus Response Act ("FFCRA") expired, which means employers who were subject to the new law are no longer required to provide either the paid sick leave or paid expanded family medical leave under the FFCRA. On December 27, however, President Trump signed into law the Consolidated Appropriations Act, 2021, also commonly known as the COVID Relief Bill. Importantly, the COVID Relief Bill includes a provision allowing employers to voluntary extend both the paid sick leave and expanded family medical leave benefits provided under the FFCRA through March 31, 2021. Employers that choose to voluntary provide the FFCRA benefits remain entitled to the corresponding payroll tax credit.
For companies that choose not to voluntary extend the benefits provided under the FFCRA, the question remains what to do with employees who are out sick with COVID-19, been exposed to COVID-19, or are missing work to care for a child at home because school is closed for COVID-19 reasons or the child has been exposed to or is sick with COVID-19. In these instances, the situation is similar to the pre-pandemic sick employee or the employee who missed work to care for a sick child. First, consider state law. Many states have enacted legislation providing COVID related leave, and, unlike the federal FFCRA, those laws did not expire on December 31.
Second, review your Employee Handbook to determine whether there are any applicable employment policies, such as paid leave policies, unpaid leave of absence policies, or attendance policies. Companies also need to consider possible Americans with Disabilities Act ("ADA") and Family Medical Leave Act ("FMLA") implications.
The individual who is missing work because they are sick with COVID-19 may be suffering from a disability, as that term is defined under the ADA. In those instances, the employee may be entitled to a reasonable accommodation in the form of unpaid leave from work, which would allow the employee to then return to work to perform his or her essential functions. In all of these instances, however, the employer will never have to provide indefinite leave as a reasonable accommodation under the ADA.
Companies subject to the FMLA also need to consider whether the sickness rises to the level of a serious health condition, allowing the qualifying employee up to 12 weeks of unpaid leave from work. These companies also need to consider whether individuals missing work to care for a spouse, child, or parent who has a serious health condition are also entitled to unpaid leave under the FMLA.
In light of the expiration of the FFCRA, it is a good time for employers to revisit their leave and attendance policies. Revisions to these policies may be in order in light of the reality that, while the FFCRA has expired, COVID-19 has not. Philip Siegel is available to review your policies and assist with any necessary revisions or with the drafting of a policy specific to these COVID-19 related issues. You can reach Philip by calling him directly at (404) 469-9197, or you can e-mail by clicking here.
