Throughout 2020, we have provided updates on the adoption of the Families First Coronavirus Response Act (FFCRA), its implementing regulations, and its amended regulations. In these updates, we have noted that the FFCRA – which provides emergency paid sick leave and paid emergency family leave for certain COVID-19-related reasons to public sector employees and employees of private employers with fewer than 500 employees — would sunset on December 31, 2020 unless extended by Congress. With just over two weeks left in the calendar year and no legislative activity suggesting that Congress plans immediately to extend the FFCRA, employers are advised to consider the implications of the upcoming deadline and communicate with employees about their return-to-work obligations, if applicable.

Because FFCRA-covered leave expires with the natural expiration of the FFCRA, so too does the tax relief that is intended to offset employers’ burden in providing paid leave. Therefore, even if an employee is only a few weeks into an FFCRA-covered family leave to provide child care due to his or her child’s school or daycare closure, the employee’s paid leave entitlement terminates on December 31, 2020, regardless of whether the employee has exhausted his or her statutory allotment of leave. Likewise, if an employee who has not used any of the up to 80 hours of emergency paid sick leave (EPSL) available under the FFCRA presents with a qualifying reason otherwise entitling him or her to EPSL on December 30, the employee would only be able to utilize as many hours of EPSL as he or she would have worked before 11:59 p.m. on December 31. After December 31, employees will only be entitled to time off from work for COVID-19-related reasons if they are eligible for unpaid Family and Medical Leave Act (FMLA) leave, are entitled to take time off pursuant to a state paid or unpaid sick leave or family leave law, or have available paid time off (PTO) or are permitted to take leave under a discretionary employer policy. Employers should be certain that employees understand this, particularly as they choose whether to use PTO at year-end. The job restoration requirements of the FFCRA likewise will sunset on December 31, 2020, meaning that if employees are unable to return to work from an FFCRA-covered leave on January 1 (or their next regular workday thereafter) and are not otherwise entitled to protected time off, they may be terminated for failing to return. It is therefore critically important to manage employees’ expectations before their FFCRA entitlement draws to a close.

Employers are also encouraged to communicate in advance how, if at all, they plan to address the challenges that employees will continue to face in 2021 as the end of the pandemic remains out of sight. Many employees who parent or care for school-age children continue to face virtual and hybrid learning environments that interfere with regular working hours. Without FFCRA protections beginning in January 2021, many will face the difficult decision of whether to resign to supervise distance learning. Employers should consider whether to provide personal leaves of absence, remote telework arrangements, or flexible schedules to try to retain valuable employees after the expiration of the FFCRA.

Finally, once reminded that the FFCRA’s protections might end on December 31, employees may try to take advantage of remaining FFCRA-covered leave before the Act’s expiration, such as to care for children home from school over the holidays. However, employers may still require certification that leave is being taken because a school or daycare is closed, or child care provider is unavailable, because of a COVID-19 related reason in order to qualify for FFCRA leave. Ordinary school closures, such as for winter break, do not qualify for FFCRA leave. Knowing the questions to ask and information to request from employees to minimize FFCRA-leave abuse will help to avoid staffing shortages in the final weeks of the year.