This post is co-authored by Lindsay Dischley, an employment and litigation attorney at Chiesa, Shahinian, and Giantomasi, PC.
Updated January 4, 2021
In immediate response to the COVID-19 pandemic, on April 1, 2020, Congress passed the Families First Coronavirus Response Act (“FFCRA”) to help the American workforce battle the impacts of the virus. Pursuant to the FFCRA, most employers with fewer than 500 employees were eligible to receive tax credits as reimbursement for the cost of providing the additional required sick leave and family leave benefits available to employees under the FFCRA. These additional sick leave and family leave benefits are outlined here.
While the second wave of the pandemic continues to rage and will, unfortunately, likely continue on this trajectory for the foreseeable future, it appears the FFCRA will not be extended beyond its expiration date of December 31, 2020, leaving employees without much needed additional sick leave and leave to, among other things, care for children who remain out of school due the virus.
Even if the FFCRA’s added protections do not extend into 2021, employers and human resources professionals’ obligations to keep their employees safe and to mitigate the spread of COVID-19 certainly will. Therefore, in addition to the regular State and Federal leave benefits, employers may want to consider alternative ways to continue to support employees as we all navigate the pandemic into the new year. Some of these options are outlined here.
1. WORK FROM HOME AND FLEXIBLE WORK SCHEDULES
The CDC reports that workers in an office are twice as likely to contract COVID than those who work from home. Therefore, employers should consider allowing employees who are working productively in a remote environment to continue to work remotely. And, if your business previously made the decision to bring workers back to the office, but remote work is still a viable option, consider reverting back to remote work in order to keep your employees safe. This is also a prudent way to prevent the virus from spreading within your workplace and negatively impacting productivity.
Employers may also want to accommodate flexible work schedules wherever possible, including for employees who are managing virtual schooling or the care of other relatives. Not only does this keep less employees in the workplace at one time, but it also builds employee morale.
2. REEVALUATE LEAVE BENEFITS
While employers can make a decision to offer employees additional paid sick leave beyond that which is required by law, many employers simply cannot afford to do so right now. However, when it comes to mandatory paid sick leave, if your company has been using the accrual method, whereby your employees accrue 1 hour of paid sick leave for every 30 hours worked, up to 40 hours a year, your company may choose to frontload the sick leave for 2021 to give employees 40 hours upfront in case it is needed while we are still in the depths of the pandemic. Similarly, if employees traditionally accrue paid time off (“PTO”) or vacation time, employers may consider frontloading these days for the coming year as well.
Employers may also consider allowing employees a one-time only carry over of sick leave, vacation or PTO from 2020 into the new year. Most employees were likely unable to use much of their vacation in 2020 so this decision could also be a big boost to employee morale without having to make any changes to the underlying benefit itself.
These additional days at the outset of 2021 will offer a layer of comfort so that, even if they are not guaranteed federally required leave, your employees will have a buffer of paid days off should employees need them early in the new year.
Beyond mandatory leave and internal PTO/vacation offerings, employers may also offer unpaid leave to their employees. Traditionally not job protected, and only available if an employee has exhausted all other leave allowances, employers may consider expanding unpaid leave benefits for a certain period of time.
3. IMPLEMENT SAFETY PROTOCOLS
If your business is in a position where it is impossible for all or a portion of your workforce to work from home, you should have strong, legally-vetted COVID safety protocols and policies in place for your employees. This includes policies and procedures relating to health monitoring, face coverings, physical distancing and cleaning and sanitizing. These policies send the message to employees that your company takes their safety seriously, provides confident direction on how to keep them safe, and offers recourse for those who do not abide by the policies to keep others safe. In addition to having strong policies in place, employers should have a team headed by HR committed to ensuring compliance with the policies and to addressing any employee questions or concerns. HR should also be prepared, with the assistance of legal counsel, to address requests for accommodations, which will likely continue to explode through the new year.
Updates for 2021
On December 27, 2020 a $900 Billion Coronavirus Relief Bill was signed by the president. It answers the pressing questions related to the FFCRA. Our partners at CSG outline the updated provisions here. In brief –
The new bill does not extend the paid family leave or emergency sick leave mandates contained in the FFCRA. However, eligible employers may voluntarily provide FFCRA leave benefits to qualified employees and can claim employer tax credits through March 31, 2021.
Some key takeaways –
- Beginning January 1, 2021, employers will no longer be required to provide FFCRA leave benefits to qualified employees.
- However, private employers with less than 500 employees (“Covered Employers”) may voluntarily provide FFCRA leave benefits to employees.
- Covered Employers who choose to provide paid FFCRA leave may still claim a refundable tax credit for the cost of providing this paid leave to employees through March 31, 2021.
- Public employers are ineligible for these FFCRA tax credits as of January 1, 2021.
- Employees’ FFCRA leave banks do not replenish in 2021. Even if employers provide leave benefits on a calendar year basis, employees who exhausted their FFCRA leave in 2020 are not entitled to additional FFCRA leave in 2021. Employers may, however, choose to permit employees to carry over any unused FFCRA leave from 2020.
Be mindful that although the leave provisions through the FFCRA have changed, some states may have enacted mandatory sick leave laws for COVID-19 related reasons. These laws did not sundown on December 31st.
Employers should immediately decide if they are going to extend the voluntary leave benefits to their workforce, update their policies accordingly and communicate those policies to their employees.
Not Sure What to Do?
This is an extremely challenging time for businesses and their employees. As the pandemic has unfolded, we have all been required to adapt and pivot. Please reach out to the certified HR Consultants at Red Clover and skilled employment lawyers at Chiesa, Shahinian and Giantomasi with any questions or for assistance in navigating effective solutions for your company as it moves towards what we hope will be a brighter and healthier new year.
