Families First Coronavirus Response Act: We Hardly Knew Ye!

The Families First Coronavirus Response Act (“FFCRA”) became federal law on April 1, 2020. (For a detailed discussion on FFCRA coverage see our blog post dated March 20, 2020). The FFCRA was the first federal legislation mandating nationwide paid leave for employees. Unlike many other federal employment laws, the FFCRA contained a “use by” date of December 31, 2020. So, after tomorrow, it expires.

The most recent Congressional action failed to extend either the FFCRA’s Emergency Paid Sick Leave and Emergency Family and Medical Leave Act provisions into the New Year. Instead, Congress greenlit those covered employers who wish to voluntarily continue to provide FFCRA paid sick leave with a tax credit incentive up to March 31, 2021. If there are any lingering issues, the U.S. Department of Labor is expected to give additional guidance.

However, private employers may need to consider whether to continue to provide paid time off to sick employees, those seeking testing, caring for other family members or those testing positive for COVID-19 even beyond tomorrow in light of the continuing COVID crisis. Does any employer really want infected employees returning to work prematurely because they cannot afford to stay home? Or employees leaving minor children alone at home because of a school closure?

Even as they say “auf weidersehen” to the FFCRA, Florida employers need to remember that employees are still entitled to unpaid traditional FMLA leave if they are sick with COVID (and meets the test for a serious health condition) or are caring for a covered family member with a serious health condition.

But wait, that’s not the end of the story. The FFCRA will continue to be a zombie law, since it allows employees to file suit up to two years after the alleged violation of the FFCRA and for willful violations of the FFCRA for up to three years afterwards.

As we look to 2021, now that the U.S. has dipped its toes into paid leave, query whether Congress and the Biden administration will revisit the need for paid leave for those who need to care for themselves or covered family members as the pandemic continues or for other health-related reasons after the present crisis ends.