Podcast: FFCRA's December 31 Expiration Date Looms Large for HR

On this podcast, Littler employment attorney Natasha DeCourcy joins XpertHR Legal Editor David Weisenfeld to discuss what happens if the Families First Coronavirus Response Act (FFCRA) and its federal paid leave provision is allowed to expire on December 31.

DeCourcy takes employers through all the potential contingencies, including whether an expiration also means the end of an employer's ability to continue claiming tax credits. She also advises that employers should not mention the FFCRA, or anything related to COVID, in their employee handbooks because of the fleeting nature of these requirements.

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David Weisenfeld: I'm David Weisenfeld for XpertHR.com, published by the LexisNexis Risk Solutions Group.

While much attention is understandably focused these days on the presidential transition, a pressing issue for employers and employees alike is what happens if the Families First Coronavirus Response Act is allowed to expire on December 31?

Many employees have become reliant on this first-ever federal paid leave law since March, and other emergency benefits amid Covid-19. But barring an 11th-hour compromise, the FFCRA could be coming to an end.

On this podcast we'll explore what you need to know about the fragile state of this law, and how to prepare for all contingencies, with Littler employment attorney, Natasha DeCourcy, of the firm's Walnut Creek, California office. Natasha is the firm's go-to person on the FFCRA, and we're pleased to have her with us. Natasha, welcome. [0:01:15.9]

Natasha DeCourcy: Thank you, David.

David Weisenfeld: I'm so happy to have you join us on this topical issue, but before we even get to that, I know numbers are way up across the country and particularly in California, so just how are things by you from what you've been seeing on a day-to-day basis? [0:01:35.6]

Natasha DeCourcy: Well what we're seeing is a very quick attempt by local and state government officials to try to slow the spread of Covid. The state just implemented a new curfew, so everyone has to be home now by 9:59. And several counties, Santa Clara County and just today Los Angeles County, have instituted their own rules about businesses closing and schools not going back.

I know in San Francisco they were about to let public schools go back and now they're putting that on hold, and in my county, Alameda County, the same thing. We were going to go back in December, then we were going to go back in January, and now those plans are all on hold. And I think we're very worried about trying to slow the spread, so that we can take some of the concern away from the healthcare professionals who are trying to make sure that the hospitals are not overwhelmed.

David Weisenfeld: Obviously a lot of people have relied on these FFCRA benefits, so what are you telling employers or HR to do to prepare when it comes to the possible expiration of this law? [0:02:48.8]

Natasha DeCourcy: I would say beginning in about September many clients would contact us asking what's next for the FFCRA, and also there are a lot of mini-FFCRAs throughout the country, both state and local municipalities have passed their own. So those are kind of separate but somewhat similar, but also provide 80 hours of leave time generally.

But at this point we still don't know if it's going to be renewed or extended or changed. And under the current law it's going to expire on December 31. We do believe it's important to give employees time off during this pandemic to encourage workers to stay home.

So we have been advising employers to review their leave policies and determine if they can find another 80-hour bank, even if they're not required to do so, and to consider whether or not, if not financially feasible, if they could provide some form of unpaid time. So we have been telling employers for awhile what they can do on their own.

David Weisenfeld: Natasha, if I'm entitled to a few weeks' time and I put in for FFCRA leave in mid- to late-December, does it automatically terminate when the clock strikes 12:00 on December 31, or if I have remaining paid leave time can I still use it as long as I make that request before the end of the year? [0:04:10.0]

Natasha DeCourcy: Unfortunately when the clock strikes midnight on December 31, your leave time under the FFCRA will expire. So employers will not be able to receive any tax credits for time. I'm assuming that many employers, if someone asks for it, say on December 20, would let employees take an additional four days' off, possibly paid. But it wouldn't be considered FFCRA time, meaning it wouldn't be protected under the law and it wouldn't be useful for employers to get tax credits for that.

David Weisenfeld: And how should employers treat the FFCRA in terms of their employee handbooks? This is the time of year when employers are taking a fresh look at that, but will they need to send an update to their employees, or is it better not to mention this at all? [0:04:58.5]

Natasha DeCourcy: We've been advising since March not to mention any Covid-related policies in handbooks, including:

  • Sick leave policies;
  • Leave of absence policies; or
  • Safety rules, anything like that.

And the reason is because handbooks are generally not reviewed as frequently as they should be or as employers want them to be. These laws are all temporary by nature, and they generally have that expiration date. And even more importantly, they evolve over time.

As soon as the FFCRA was passed, within like six weeks it was completely changed, because these laws are written so quickly and passed so quickly. You can't really prepare a policy that's going to last more than a few months. So we recommend that the policies be completely standalone and that handbooks don't even mention anything related to Covid.

David Weisenfeld: I'm sure that's a good point. What happens if at the last minute - and I touched on this at the top - Congress ends up extending the FFCRA? We don't know whether that will happen or not but if it does, are you advising employers to prepare for that, and how do they go about getting ready for that possibility? [0:06:03.6]

Natasha DeCourcy: The best way to be ready for the new rules that come out is to have a really good posting service. And what I mean by that is a service that you subscribe to that provides you with all the required posters from a federal, state and local standpoint because the FFCRA requires that employers, where they have employees who are eligible to take the time, to have a posting. Whether it be posted in the workplace or posted on an intranet, they are required to post something.

So if you subscribe to a service, you will be one of the first people to get the posting that's required or to have access to it on an intranet site.

There's no reason to prepare a policy immediately. I recommend using the policy only when somebody requests the time and not providing the policy to every single employee, because again the policy changes every few weeks. So as long as employers are ready for the possibility that they're going to need to provide probably up to an 80-hour bank of time… And I keep referencing the 80-hour bank of time because that's the one that's used the most, but obviously the FFCRA also provides time off up to 10 or 12 weeks to take care of children whose schools have closed. So we might see that be renewed as well.

David Weisenfeld: Again, we're speaking with Littler employment attorney Natasha DeCourcy, of the firm's Walnut Creek, California office. And Natasha, how about if an employer voluntarily decides to continue paid leave? You had mentioned earlier that companies certainly could take that step even if the FFCRA does expire. So if they do, will the employer's ability to continue claiming tax credits go out the window too? [0:07:52.4]

Natasha DeCourcy: At this point, when the FFCRA expires, employers will no longer be able to apply for tax credits if they provide time. That said, employers could voluntarily provide the additional time, and usually we've seen with the mini-FFCRAs and even the federal FFCRA, that if you have provided time off for the very purpose of Covid-related reasons, in addition to the time that was already provided by a vacation or a sick leave policy, that you could use that.

So I would say that about one-third of the clients I work with have provided all employees with additional 80 hours of time off per Covid-related reasons, even those that don't qualify, just to be treating all employees universally the same. So I think that if you're willing to provide the time and a new rule passes from a federal standpoint, you could still possibly collect the tax credits retroactively. But again there's no way to know in the future if that will happen.

David Weisenfeld: And what other implications are there out there that businesses need to be aware of and on the lookout for? [0:09:03.0]

Natasha DeCourcy: I think since March one of the main issues has been how can employers help their employees but at the same time get the work that needs to be done completed, because obviously we also have attendance issues. I've definitely dealt with many clients who have employees that are taking time off unfairly that don't really need the time off, and then other employees that should be taking time off that are not.

So I think this is a time when employers need to be very careful of what they're promising, but be really willing to work with employees.

Some ideas are:

  • Letting employees work from home who never previously worked from home, even if they're not quite as productive as you might want them to be;
  • Asking employees what they need;
  • Letting employees work different hours or flex-time if they have young kids who are at home.

Things like that, to be as helpful as possible.

David Weisenfeld: Natasha, you just hit on a key point with attendance, and I'm curious - during these last several months of Covid-19, have you been hearing a lot from clients about employees misusing leave or claiming time when they really didn't need it? Has that been something that's been on the rise, or is that really not a trend? [0:10:27.9]

Natasha DeCourcy: I don't think that's a trend. I have heard of three or four instances of that, and I probably talk to about 30-to-40 clients a week about these issues. So I don't think that's a lot or a trend at all. But I do think that employers are worried about it, that if they provide 80 hours of Covid time, what if somebody takes the time off when they're pretty sure they don't have Covid?

And I think the biggest problem is a lot of employees might believe that they could have Covid because the symptoms vary so much. So I always say - and I've been saying this for years, even before Covid - that you shouldn't use an attendance policy when you have one or two employees whose attendance is a problem. You shouldn't use the attendance policy, the way it's written, to stop those people from taking time off they shouldn't be taking off.

I think it's better to try to work with those people individually about their own problems rather than create an attendance policy to address the needs of one or two employees.

David Weisenfeld: Shifting gears a bit, Natasha, could those with long-term medical complications from Covid-19, or perhaps even who have a family member with them, get any sort of relief or reasonable accommodation under another law, such as the Americans with Disabilities Act? [0:11:57.3]

Natasha DeCourcy: Yes. So if an employee experiences a serious Covid case or has lasting symptoms that impact the employee's ability to complete essential job functions, then the medical condition is arguably a disability under the Americans with Disabilities Act and applicable state law. And to comply with providing reasonable accommodations, employers would need to engage in the interactive process and consider alternatives where possible.

And regarding family members, well there's the federal FMLA, as well as a lot of state rules that could apply, that could provide employees with the ability to take up to 12 weeks or longer off to take care of immediate family members with serious health conditions.

David Weisenfeld: In our final minute or two, Natasha, could you share a final piece of advice for HR professionals during this uncertain time with not knowing what may or may not happen with the FFCRA? [0:12:54.7]

Natasha DeCourcy: I think that this is a very complicated time for everyone. I think employers and employees all need to approach this next year with flexibility and determination. As I said, there are employers who have had some attendance issues, but largely I think most people are trying to do their jobs remotely where they have that, do their jobs in person where they have that, and be on their honor to work hard.

But I think with Covid on the rise and a new administration, which isn't going to probably take place immediately when FFCRA expires, but I do think we will likely have some additional solutions in the future. But in the meantime I think we just need to be flexible where we can and patient, and employees should be asked to be safe and transparent.

For example, some employers have asked employees who travel to be on their honor in quarantine for 10-14 days, even if that's not required by law, and others have encouraged them to stay home where possible.

So practically speaking, I think employers should ensure that all their policies are up-to-date, that they have sound vacation and sick leave policies, and be ready to offer additional Covid leave time, whether paid or unpaid, in the coming year.

David Weisenfeld: Okay, we'll let that be the last word. Natasha DeCourcy is an employment attorney with Littler, the nation's largest law firm exclusively representing employers. Natasha, thanks for your insights on the FFCRA. [0:14:24.2]

Natasha DeCourcy: Thank you so much, David.

David Weisenfeld: It was our pleasure to have you.

I'm David Weisenfeld. Continue checking our website regularly for more podcasts affecting the workplace. Recent programs include What the Biden Presidency Could Mean for Employers.

The opinions expressed in this program do not represent legal advice, nor should they necessarily be taken as the views of XpertHR or its employees. XpertHR.com is published by the LexisNexis Risk Solutions Group.

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