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Will Some Of The COVID-19 Leave Laws Become Permanent?

Leave case manager with coffee looking at new COVID-19 leave laws on his laptop

We recently reached out to Jon Hyman, the legal expert behind the Ohio Employer Law Blog for his opinion on the state of leave laws and COVID-19. Here are his insightful thoughts.

For all the negative effects that the COVID-19 pandemic has wrought, it has imparted some very positive changes to the American workplace. For example, remote work, long looked down upon by employers, is now the norm in many workplaces. Another area of constructive change surrounds the issue of paid leave for employees.

The United States remains the only industrialized nation that does not provide any type or amount of paid sick leave to its employees. Some employees do have access, but not nearly enough. Per an executive order signed by President Obama, some federal contractors must offer paid sick leave to their employees, and federal coverage has also expanded to federal government employees. Moreover, some states and municipalities require the same. Yet, most U.S. employees have zero access to any amount of paid sick, maternity/paternity leave, or family leave.

This is a national embarrassment. When other countries, even in the developing world, do better for their employees on this issue than we do for ours, we are doing something very, very wrong.

During the pandemic, the sheer number of employees who needed to miss work to care for themselves or others shined a bright light on the need for paid sick leave and paid family leave. Congress rose to the occasion by passing the Families First Coronavirus Response Act (FFCRA). The FFCRA, which only applied to public employers, and private employers with fewer than 500 employees, provided 80 hours of paid sick and family leave (subject to some dollar caps) for most COVID-related absences, plus an additional 10 weeks of paid FMLA leave (also subject to some dollar caps) for parents to handle schools’ COVID-related closures. Employers, in turn, were compensated for this paid leave by claiming a dollar-for-dollar payroll tax credit provided by the Internal Revenue Service (IRS). While the FFCRA expired on December 31, 2020, Congress, via the American Rescue Plan Act, permitted employers to voluntarily continue to claim the payroll tax credit for any COVID-related paid leave provided to employees through September 30, 2021. That reimbursement, and likely all COVID-related paid leave from employers, will therefore shortly end.

 The enduring question is whether the FFCRA has altered our national attitude for paid sick and paid family leave? I believe that it has. The time has long since passed for America to embrace and adopt paid FMLA, and the FFCRA has given us a roadmap for how to implement it.

If Congress gave me carte blanche to design America’s paid FMLA, the following is what it would look like.

  • Employees would fund a family and medical leave insurance program via a nominal increase to employees’ payroll tax contribution, with such program to be created within and administered by the Department of Labor’s Wage & Hour Division.
  • Coverage is identical to coverage currently available under the currently existing FMLA, with the addition of businesses as small as 25 employees.
  • FMLA leave would expand to include school-related absences (i.e. school is closed because of a viral outbreak or inclement weather, parent-teacher conferences, and school plays and athletic events).
  • An employee could receive paid family and medical leave benefits for any reason for which an employee would otherwise qualify for unpaid leave under the (proposed expanded) FMLA.
  • Employers are vested with the authority to determine who is and is not eligible for paid FMLA, just as they now determine who is and is not eligible for unpaid FMLA.
  • Leave would be paid on a sliding scale of benefits based on income level, from 95% of one’s average weekly wage for the lowest wage earners up to 66% for the highest.
  • Employers would pay the FMLA benefit as payroll continuation (as they did for FFCRA leave), to be reimbursed by a payroll tax credit (as was also the case for FFCRA leave), with family and medical leave insurance programs ultimately reimbursing the Department of Treasury for these payroll tax credits.

I’m not saying this is the perfect solution, but as the FFCRA demonstrated for the past 18 months, by taking the cost burden off the employer, it is a solution. We also need a solution so that America can join the rest of the world in supporting the family and medical leave needs of our employees.

To help employers manage their (pandemic-related) leaves, it’s important that they have the right technology in place. Luckily, we have a special offer to help you manage leave like a pro! 

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*Please note that this article is an opinion piece by Jon Hyman, a nationally recognized employment and labor attorney. Jon Hyman is a Director at Wickens Herzer Panza in Avon, Ohio and is part of the firm’s Employment & Labor Practice Area. Jon also authors the award-winning Ohio Employer Law Blog, inducted by the ABA Journal into its Blawg Hall of Fame.

About Presagia

Founded in 1987, Presagia has a long history of helping organizations solve complex business problems with easy-to-use solutions. Today, this means providing cloud-based absence management solutions that enable organizations to be more efficient, control lost time and risk, and strengthen compliance with federal, state and municipal leave and accommodation laws.

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