The federal Families First Coronavirus Response Act (FFCRA) is scheduled to expire on December 31, 2020. And, with no word at this time as to whether the provisions will be extended, this means that employees may lose job protected paid leave. The loss of leave for certain COVID-19 related situations including leave to care for a child(ren) if their school or place of childcare is closed or unavailable due to COVID-19 may have a large impact on employees and employers if schools continue hybrid and/or remote learning models into 2021. While the New Year may provide employees with a fresh bank of company-provided paid time off such as sick days, personal days or vacation/PTO time to be used in the event of an employee’s illness or that of a family member, employers will need to decide whether to permit this time to be applied to absences related to childcare. In addition, company-provided paid time off will likely not provide the necessary amount of time an employee may continue to need if schools continue hybrid and/or remote learning. While there may not necessarily be job protected leave available to these employees under the law come 2021, employers should start planning on how to accommodate employees who may need additional time away from work to care for their child(ren) if their school is closed or child care provider is unavailable due to the pandemic. When the FFCRA expires, employers will be left without a guide for how long a leave should be or steps they may need to take in the event of a COVID-19 related leaves.
Providing flexibility in the form of intermittent leave coupled with remote work may be an option for some employers. If employees do have remote work capabilities, employers should also consider allowing for flexible scheduling of the employee’s workday so they may be able to still perform work while being available during periods of their child’s schooling, if needed. Some employees may require additional time away from work including a temporary continuous leave of absence. We certainly understand that some positions are not able to be performed remotely and some employees may have used much of their FFCRA leave or even exhausted their time. In these instances, employers may consider shift changes, permitting work to be completed at uncustomary hours or a flexible time arrangement that permit employees to work extended shifts on some days in exchange for a day(s) off that coincides with their child’s remote learning day(s). To the extent possible, employers should be flexible and creative about when and how work is completed. This said, some employers may still believe that providing additional leave or flexible work arrangements may be an undue hardship on the business.
Employers should navigate these situations much like they would for an accommodation under the Americans with Disabilities Act (ADA). Employers who have employees who are in need of accommodations should work with the employees based on their situation and position to find an accommodation, whether that be remote work, intermittent leave, a flexible schedule, a continuous unpaid leave of absence, etc. Because the FFCRA law is still relatively new and the protections of the law are sunsetting, coupled with employees nearing exhaustion or exhausting their leave under the law, employers are presented with challenging situations and have uncertainty on how to proceed. As a result, employers should consider working with their legal counsel prior to denying a request for a flexible work arrangement or additional leave if they feel no accommodation can be provided due to business needs.
We understand that the pandemic is not over, and businesses are continuing to face unique challenges daily. While continuing to accommodate employees for remote schooling can certainly be frustrating and inconvenient, employers are encouraged to keep in mind that many people are struggling in this pandemic and all reasonable options should be explored to help employees.
HR Works will continue to monitor the provisions of the FFCRA, including any possible extension of the law and will communicate additional information and guidance for employers as it become available.