04 Jan As Pandemic Lingers, Workers Exhaust Emergency Leave Options

Last March, Congress passed the Families First Coronavirus Response Act (FFFCRA) requiring employers with fewer than 500 employees to provide up to two weeks of paid sick leave and up to 12 weeks of expanded family and medical leave to help workers cope with the impacts of the COVID-19.

This expanded the permissible use of leave under the Federal Family Medical Leave Act (FMLA) to employees unable to work (either at the office or at home) in order to care for their children due to the closure of a place of care. As the global health crisis continued through summer, many employees without an available summer camp, enrichment program or other childcare option took advantage of FFCRA leave per federal guidelines.

As many schools remain closed or adopt a hybrid schedule, employees throughout the nation are close to exhausting their emergency leave options. What can employers do to provide assistance to parents who are struggling to keep their families healthy and safe during the pandemic? There are no clear answers under existing laws, nor is any federal legislation under consideration to address this issue.

Currently, the emergency leave provisions, established to address COVID-19, are treated in the same way as protected leave under the FMLA. According to FAQs issued by the Department of Labor in the wake of the FFCRA, at the end of either leave, the employee is entitled to return to the same or nearly equivalent job.

However, there is no definitive guidance on how employers should respond once the employee’s emergency leave runs out and schools remain closed. Given the language and intent of both state and federal laws to help families cope with the public health emergency, employers should consider providing increased flexibility in a manner that is non-discriminatory.

For example, the American with Disabilities Act can provide a structure for responding to employees’ ongoing needs for emergency leave during school and childcare closures. This means that, although the employee’s job would not be protected under FMLA after their FFCRA leave expires, the employer may opt to provide additional unpaid leave as a reasonable accommodation.

In addition, employers should carefully consider the individual circumstances of each employee and exercise caution about terminating an employee who has exhausted their leave options. It is important to engage in an interactive process to determine whether a reasonable accommodation – such as additional time off, a modified work schedule or a work-at-home arrangement – can be made. This is especially important for employees caring for someone who is ill, caring for children whose schools are closed or who are at high risk of serious COVID-19 symptoms due to a pre-existing medical condition.

Finally, it is important for employers to consider the implications of state and local paid sick leave laws that existed prior to COVID-19. For example, California and several other states have general paid leave laws covering employees out of work due to COVID-19 school closures.

Dozens of states have also implemented transitional and COVID-19 paid sick leave laws related to school and childcare closures. For example, Los Angeles’ Supplemental Paid Sick Leave law requires employers with over 500 workers to provide supplemental paid sick leave to certain employees affected by COVID-19. The Los Angeles City Council also passed the Right of Recall Ordinance, requiring employers to offer any new positions to certain laid off workers, and the Citywide Worker Retention Ordinance, requiring a successor business to provide priority hiring to the previous owner’s employees.

As the impacts of COVID-19 in the workplace stretch on, employers should continue monitoring leave laws at the federal, state and local levels, including those that were implemented prior to the pandemic. Employers should also exercise flexibility with their internal leave programs and consider the feasibility of modified work schedules and work-from-home options.

Pacific Federal is a Zenith American Solutions company and subsidiary of Harbour Benefit Holdings, Inc.