The Families First Coronavirus Response Act (“FFCRA”) was enacted in March 2020 which expanded both medical leave and the Family Medical Leave Act – providing both as paid leave. This legislation is also known as the Emergency Paid Sick Leave Act (“EPSLA”) and the Emergency Family and Medical Leave Expansion Act (“EFMLA”). The law impacted employers with 500 or less employees, and it was just for the calendar year 2020.
One of the qualifying needs for both EPSLA and EFMLA related to a public health emergency, included a need to care for a child under age 18 if the child’s school or place of care has closed, or the child’s care provider is unavailable. The employee would be entitled to 2/3rd pay for up to 12 weeks. The regulations were updated to align with a court decision that the time off could be intermittent.
Given the schooling situation today and the resurgence of COVID-19, employees are either running out of leave time or have already run out. Many children still are taking instruction remotely or are returning on a hybrid schedule with only part-time in-school instruction. Another issue arising for employees who are on furlough is that there is no additional pandemic unemployment at this time until another stimulus is passed. So, it is now a buyers’ market, for lack of a better term, in the employment arena.
Employers have more options than they did previously. If work is ramping up, they can recall employees or go into the marketplace to hire new employees. Employees who are in the school situation and are running out of time off could be penalized as their job protection runs out, unless the state or local jurisdictions extend the protections found in the FFCRA, like California and Colorado or Cook County in Illinois.
What should employers do? If they can do so, it is recommended to create more flexible leave policies and keep their employees. In fact, the Department of Labor has encouraged employers to “review their leave policies to consider providing increased flexibility to their employees and their families,” reminding employers that these leave policies must be non-discriminatory. Further, it is not recommended to just arbitrarily let employees go when their leave runs out. The employer may want to consider going through an interactive process with the employee to determine whether a reasonable adjustment can be made—such as additional time off, a modified schedule, or a work-at-home arrangement.
One of the issues of the pandemic has been that women have more likely dropped out of the workforce than men given familial situations. According to recent government data, nearly 617,000 women, compared with 78,000 men, left the workforce in September alone. According to McKinsey's annual study of women in the workforce, one out of every four women is considering dropping out altogether or cutting back. As many as two million women are considering taking a leave from work.
If employers don’t at least try to have some flexibility with their leave policies, and treat employees differently depending on their situation, they could be subject to a lawsuit for discrimination at minimum. The ultimate issue is not time off, but performance on the job given the needs and requirements to have the essential tasks successfully completed. According to one researcher, they found that women believe that men are more favored by employers than women. And it has been widely reported that women’s gains in the workforce over the past years are being wiped out because of the pandemic.
HR should work with legal counsel to come up with various options that could solve both the FFCRA as well as employment issues while keeping the workforce intact. It is a lot cheaper to keep experienced employees than to hire and train new ones.
Source: Seyfarth Shaw 10/22/20, Forbes 10/14/20