Leah M. Stiegler

Leah M. Stiegler
Associate

Michael P. Gardner

Michael P. Gardner
Principal

In its new Coronavirus Relief Bill, Congress declined to extend the mandate requiring employers to offer paid sick and family leave under the Families First Coronavirus Response Act (“FFCRA”). However, employers who voluntarily provide it through March 31, 2021, can still receive the tax credit if they are otherwise eligible. While this interpretation is still subject to Department of Labor and Internal Revenue Service guidance, think of it like a reimbursable voluntary extension of FFCRA leave.

As of the time of this publication, the president has not signed the relief package, but the White House has indicated he will. Here is a quick recap:

  • The FFCRA ran from April 1, 2020 and was set to expire on December 31, 2020.
  • It required employers to provide 80 hours of paid sick leave for situations where an employee had symptoms, was potentially exposed, was caring for someone who was sick, or was advised by a health care provider to quarantine.
  • It also provided up to 10 weeks of paid family medical leave to employees who had to care for a child whose school had closed due to COVID-19.

Congress’s voluntary extension does not give employees another set of 80 hours or 10 weeks to use between January 1 and March 31, 2021. If an employee has already used paid sick or paid family medical leave, this new bill does not provide the employee with additional leave.

Should you comply voluntarily?

From a practical standpoint, employers have obligations to keep their workplace safe. Although you may not be required to provide paid leave, you are obligated to keep a positive or potentially sick or exposed employee out of the workplace. If you choose not to apply the FFCRA voluntarily, you can allow the employee to use his accrued or unused paid time off, or to take it unpaid. However, you must ensure the leave structure you create does not deter employees from reporting potential exposures. If employees are out of PTO, you may consider advancing them leave through an agreement.

It also not clear from Congress’s new bill whether an employer can comply voluntarily with the FFCRA for certain groups of employees but not for others. With most voluntary benefits, you can have different rules for different positions—such as those that work on the factory floor and those who work in admin, but going that approach with the FFCRA could expose you to additional liability or disparate treatment claims, so you must think through that approach carefully.

Employees who refuse suitable work!

Congress also extended federal unemployment benefits, providing most employees about $300 in federal benefits in addition to their state benefits. However, Congress tightened the rules, and is requiring states to provide mechanisms for employers to report the employees who refuse to return to work or who refuse to accept an offer of suitable work without good cause.

States participating in the federal government’s program will be required to put in place a reporting method for employers, such as through a phone line, email, or online portal, to notify the state agency when an individual refuses an offer of employment.

Employers trying to get employees to return to work should document all communication to this effect. For instance, any notes following a phone call with an employee who refuses to return to work, or letters (and follow up emails or calls) to the employee indicating a deadline required to respond or return to work will be considered a refusal to accept suitable work.

Employers will want to make sure all communications indicate exactly what is being done to keep the workplace safe—making it a “suitable” work environment. This documentation may also be needed for responses to any state inquiries. Keep in mind you may be operating in a place where certain state and local laws require additional leave or have set procedures on reporting employees to some state authority who refuse to work during this time.

Our interpretation of Congress’s actions may change over time as new guidance emerges.  As always, stay tuned!