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FFCRA could expire at end of the year

Posted On: Dec. 3, 2020 1:03 PM CST


The federal Families First Coronavirus Response Act, the complex paid sick and family and medical leave law enacted in response to the coronavirus, may expire at the end of this year.

A new coronavirus relief bill proposed by Senate Majority Leader Mitch McConnell, R-Kentucky, earlier this week did not provide any extensions of the FFCRA, which is scheduled to expire Dec. 31.

The law requires employers to give employees paid emergency sick family and medical leave and emergency paid sick leave.  It covers private employers with fewer than 500 employees and certain public employers. Employers are given a payroll tax credit for paid leave provided under the act.

“The dance is far from over,” said Jeff Nowak, a shareholder with Littler Mendelson PC in Chicago, who represents employers in employment law matters.

“There are going to be plenty of twists and turns over the next couple of weeks, and I think there’s a good chance that a paid sick leave enters the conversation before all is said and done.”

Mr. Nowak said, “I could very easily see this entering the conversation at any point as a compromise, whether that’s before or after the Biden Administration takes office.”

The act had generated concern among experts that it would lead to increased litigation against employers.

“From my standpoint as a management-side attorney, most of my clients thought it to be an aggravation that did not help them get through this pandemic in a positive, constructive way for them, so most of them will be glad to see it sunset,” said Paul E. Starkman, a member of law firm Clark Hill PLC in Chicago.

He added, however, the need for paid leave “is still there, so in that sense ending the law creates a hardship.”

Mr. Nowak said, “At first glance, employers might praise” this development. “But employers should be careful about what they wish for. (The FFCRA ) was a way to keep sick employees at home instead of at the workplace, so there isn’t a mechanism for doing that now.”

In addition, the law “provided a path for a federal answer to paid sick leave at a time when states are all over the place” in terms of the issue.

T. Christopher Bailey, an officer with Greensfelder Hemker & Gale P.C. in St. Louis, who represents employers, said the FFCRA’s expiration would mean “in effect going back to where we were at the beginning of March 2020, but we’re still living in a COVID world.”

He added, “Employers are going to have some probably very difficult explanations they’re going to have to give employees, and probably some difficult decisions.” 

Mr. Bailey said he has had clients that were not obligated to comply with the FFCRA, but nevertheless chose to do so “to make sure they were taking care of themselves and protecting the rest of their workforce as well.”
Now, if they continue to do so it will be “essentially on their own” without the tax credit the act provided, Mr. Bailey said.