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Will the Senate Save FFCRA?

The clock is ticking on the Families First Coronavirus Relief Act (FFCRA).

Signed into law on March 18, the Act has provided funding for free coronavirus testing, and includes provisions that require certain employers to offer at least two weeks of paid leave to employees affected by COVID-19.

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The law’s protections have also been shown to help curtail the spread of the coronavirus. One recent study, for instance, finds that states where employees gained access to paid sick leave through FFCRA saw roughly 400 fewer confirmed cases per state, per day.

Those protections are set to expire on Dec. 31. U.S. Congress has voted to extend the law into 2021, and FFCRA’s fate now rests with the Senate chamber. 

Whether an extension materializes is very much an open question, as the U.S. sees COVID-related hospitalizations reach record highs, and the coronavirus death count closes in on 300,000 in the States.

Deirdre Macbeth, content director, regulatory, at WorldatWork, foresees some version of FFCRA’s paid leave requirements making its way through the Senate, but doesn’t see that happening until sometime after the Dec. 31 deadline. 

“With the pandemic still rearing its ugly head, I believe some form of extended leave provisions will be put in place, whether through extension or modification of the existing Act or implementation of a new act,” she said. “However, this action will likely not take place until January 2021 or later.”

Mark Goldstein, a New York-based partner in Reed Smith’s labor and employment group, believes bipartisan backing and the recent spike in COVID-19 cases will ultimately lead to an extension for FFCRA. But, like Macbeth, he’s unsure an agreement will be reached by year’s end.  

“The FFCRA garnered bipartisan support when it was passed last spring, and its extension would likely enjoy similar support. Nevertheless, all outward appearances [suggest] there has been relatively little movement to extend the law before Dec. 31,” said Goldstein.

“You could therefore have a scenario where FFCRA expires and then is later resuscitated — perhaps retroactively — and extended into 2021,” he said. “That scenario would be a difficult one for employers, so hopefully FFCRA is extended before year-end, if it is to be extended at all.”

This uncertainty puts companies in a precarious position, said Goldstein, adding that employers should be prepared for either outcome.

“Ideally, employers would have contingency plans for both situations, i.e., if FFCRA is or is not extended beyond Dec. 31,” he said. “If the law is extended, then it should by and large be business as usual, with the exception that certain personnel forms, notices and policies might need to be slightly updated.”

A lack of action on the Senate’s part would add a degree of difficulty for employers, especially with the recent surge in cases, continued Goldstein.

“First and foremost, employers need to understand what state and local law obligations they have with respect to COVID-related time off. Employers will also want to evaluate whether adopting some of FFCRA’s leave provisions as a matter of company policy makes sense — and if so, whether the time off will be paid.”

This will require a review of all time off and leave policies, he said. And that review should be done now.

“Ultimately, employees are going to have the same needs for COVID-related time off in 2021 as they do now,” Goldstein said. “So, employers need to be prepared to address workers’ questions, both from a legal and practical standpoint.”

Macbeth also urges employers to evaluate their leave policies and determine the best way to provide leave for employees affected by ongoing issues related to the pandemic, such as child care and school closures or illness and quarantine, for example.

“Employers should afford as much flexibility as possible [for] the use of existing paid and unpaid leave programs,” she said, “and permit the use of alternative work hours and remote working arrangements where feasible.”

About the Author

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Mark McGraw is managing editor of Workspan.


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