What to Do When Employees Exhaust Their FFCRA Leave

As COVID cases continue to spike, and schools begin remote or hybrid plans, employers are frequently being faced with a dilemma: what to do when employees exhaust their Families First Coronavirus Response Act (FFCRA) leave.  It may be time to revamp employee policies, especially leave policy for employees.  This is also the best time to explore what an employer’s legal obligations are, how to prepare for this scenario, and to learn some of the best HR strategies to apply if an employee does exhaust their FFCRA leave– yet still needs more time.  

Types of FFCRA Leave 

To begin, it’s important to distinguish between the two major reasons that employees will have taken FFCRA leave: Firstly, for reasons of illness.  Maybe they have been sick with either a diagnosed case of COVID-19, or have been sick with COVID-like symptoms.  They may also have been quarantining because they tested positive for COVID, but have no symptoms.  Or, perhaps they were told by a medical professional to quarantine because they were exposed to somebody who had COVID. They’re possibly even caring for another individual who is experiencing symptoms or subject to a quarantine order. 

The second reason people take FFCRA leave is for childcare.  Perhaps their children’s school has gone completely remote or they’re operating on a hybrid plan.  For smaller children, some daycares are completely closed or are only allowing children to attend a reduced schedule.  Parents who take FFCRA leave are doing so because they are the only and/or best option to care for the child.  Some employees may take full FFCRA leave and some may take an intermittent leave if their child needs care intermittently.  

Preparation for when employees exhaust FFCRA leave 

The best thing an employer can do is prepare for this scenario before it happens. Start by updating policies for taking a leave of absence, and even create a temporary policy for FFCRA leaves.  In both a general leave of absence policy and an FFCRA-specific policy, companies should require employees to update you on their return-to-work status at least a week (if not more) before the scheduled end of their leaves. (Keep in mind that the pandemic has brought on some chaotic circumstances, so there are cases where advanced notice won’t be feasible.) You’ll also want to check (perhaps with HR consulting like MP’s, if you have it), if your leave policy (or policies) are compliant with state law.  This is especially imperative in states like California, where state law for employers is particularly detailed and rigorous.   

Once it’s written, employers should share new leave of absence policies with the management team first, preparing them for how to respond to leave requests. After, they can roll the policies out to the rest of the company (whether remotely or in-person, as needed).  When employees know their rights, as well as the business’s expectations, there will be fewer surprises and an increased sense of security and support.  If there are some difficult scenarios when an FFCRA leave is exhausted, at least an employer will have a framework for everyone to refer to for next steps.  Another benefit of having a framework is that it helps ensure that any steps taken are objective and fair, never discriminatory or displaying favoritism for a particular worker.  

Next Steps when FFCRA leave is over 

As the scheduled end of an employee’s leave approaches, employers should reach out to them (if they haven’t already communicated about the topic).  If the worker on FFCRA leave isn’t already aware, their employer should notify them that their FFCRA leave will be exhausted soon.  The staff in this circumstance should discuss what their plans are for returning to work.  The best practice is to set aside a small chunk of time to do this, so that the conversation is comprehensive, interactive, and unhurried.  The goal should be to find some solution that is palatable to both the company and the worker, so it will help to start by listening to their circumstances and concerns.  

If a staff member takes FFCRA leave because they were sick, a workplace can request a doctor’s note certifying that they are medically capable of returning to their job.  However, during this time, the CDC discourages companies from taking this step.  Doctors are busy, and this type of administrative burden could contribute to an already overwhelmed medical system.  Additionally, as sick employees recover, it’s better not to overtax them and have them risk a trip to the doctor’s office (where they might pick up some other virus). 

What to do if employees don’t want to return from FFCRA leaves 

If employees are still saying that they can’t return from an FFCRA leave, employers have many options to consider.  Depending on the circumstances, an employee may be eligible for additional job protected leave under alternative state or federal leave laws. Businesses frequently aren’t under any legal obligations to help their staff find more leave or make alternative accommodations, but MP’s HR services team notes that it’s still in their best interest to do so. Firstly, employees might leave in a mass exodus if their workplace doesn’t accommodate their needs during this stressful time.  Or, if they don’t leave now, it may have long term impact on employee morale. Workers could become extremely demotivated, perform at a lower level, and potentially even leave later, after the pandemic is over the economy has recovered.   

On the flip side, it’s in an employers’ best interest to help their employee find a palatable solution after their FFCRA leave has been exhausted because it will help them retain and attract top talent.  Especially in the age of the internet and Glassdoor, companies and nonprofits should want to do things within their power to make employees feel supported at work.  In turn, they’ll build a reputation as a great place to work, keep the talent that serves them well, and attract more qualified applicants in the future.  Workplaces should think of times like this as opportunities to prove that they can offer a truly positive corporate culture, even as their competitors might struggle to do the right thing.  

Lastly, it’s worth noting that firing an employee because they can’t return to work due to illness or childcare reasons is a terrible strategic move.  It will be likely to have some severe effects on morale at work.  An action like this may also leave the company open to lawsuits, complaints, or just a terrible reputation as an employer.  If there are no options for further leave and no possible alternative reasonable accommodations, the company can offer to let the employee take an unpaid of leave of absence or resign.  If they must fire a staffer (which should be considered the absolute last resort), it’s imperative to consult with an employment lawyer, not general counsel.  This area of law is very deep and specific, and the best advice will come from somebody with good experience in it.     

Six key options if an employee isn’t ready to return full-time from their FFCRA leave.     

• State-mandated leaves: Many states are creating leave options that are supplemental to the FFCRA.  If a worker needs more time, they may qualify for it. 

• State sick time laws: Outside of COVID, many states and cities have created their own state-mandated sick time.  If an employee took FFCRA leave because they had COVID, and after up to two weeks of FFCRA leave they still have COVID, this could be a viable option. 

• Short-term disability insurance: If an employee has elected to get short term disability coverage, this may be a good time for them to use it.  They could use it if they took an FFCRA leave due to illness and are still feeling the effects, or have tested positive a second time. Many states have expanded their state benefits to cover coronavirus-related scenarios. 

• FMLA leave: If an employee is either sick or needs time to care for their sick child, they may be eligible to use FMLA leave.  Note that FMLA leave is unpaid and only provides job protection.  It’s also important to remember that FMLA leave and FFCRA leave run concurrently.  So, if a worker has used up 12 weeks of expanded FMLA under the FFCRA to care for a child whose school or daycare is closed, they won’t have any FMLA leave to take under federal leave law.  People are only entitled to 12 weeks of federal FMLA leave every year; however, keep in mind that certain states may be more generous.  In the future, if the employee has exhausted their expanded FMLA under the FFCRA during the 12-month leave period defined by the employer, they also won’t be able to take FMLA leave again until the following 12-month period commences. 

• Company PTO and sick leaves: If a worker needs more time—whether they’re sick, quarantining, or caring for a child, it can be a good idea to check their PTO and sick leave allotments.  Workplaces could allow their employees to exhaust these balances.  They might also consider letting employees exhaust these balances in advance before the year is over and they’ve fully accrued them.  

• Alternative arrangements: If a company can’t offer any further leave to an employee and there are no further job protection mandates/considerations, they might be able to set up an alternative arrangement.  One option is to have them work remotely, either full or part-time.  Their hours could also be temporarily reduced depending on the circumstances, or they could be moved to a different department. Ideally the conditions of employment would be kept as similar to the prior conditions as possible.  A worker might also keep their current job and employment classification and just work a different, flexible schedule.  Some employers are solving these FFCRA problems by having parents team up to share jobs, so they can all work reduced hours, but still meet the goals of the role.  (Note that if an employee reduces their hours, a workplace must notify them if they are no longer eligible for health insurance, a PTO policy, or other benefits.)  If the child (or children) is (are) old enough and well-behaved, a workplace might allow the parent to temporarily bring them on-site.  If many employees are facing a lack of childcare, it may make sense to offer childcare on-site or work with a local provider to offer it (potentially at a reduced price, if the employer can afford to subsidize it).