Incoming Biden Administration Proposes Extension And Significant Expansion Of The FFCRA

On January 14, 2021, the incoming Biden Administration outlined the proposed American Rescue Plan legislation that the Administration is intending on introducing to Congress in a further effort to address the COVID-19 pandemic. Although much of the press attention surrounding the Administration’s announcement has focused on some “big ticket” items, including the potential for additional $1,400 stimulus checks to individuals, increased COVID-19 testing and a nationwide vaccination plan, the announcement also contained details about a potential extension and significant expansion of the Families First Coronavirus Response Act (FFCRA). Here are some of the highlights of the changes the American Rescue Plan would make to the FFCRA if the Plan is passed in its current form:

• It would significantly expand the reach of the FFCRA, requiring all employers, including those with five hundred or more employees, to comply with the law. Consequently, larger employers that have thus far been able to avoid having to comply with the FFCRA would quickly need to get appropriate procedures in place to address their new obligations. 
• It would keep in place the federal tax credit system that currently exists for employers with less than five hundred employees, allowing those smaller employers to avoid much (if not all) of the financial burden of providing FFCRA leave. But the American Rescue Plan would not extend those same tax credits to larger businesses (i.e., businesses with 500 or more employees). I have to believe that if this feature becomes a part of the final bill, the law will ultimately permit larger employers to substitute some (if not all) of the paid leave they likely already offer their employees as a way of satisfying their new FFCRA obligations. At this point, however, the Administration’s proposal does not address whether or not such a substitution will be permissible. 
• It would extend an employer’s obligation to provide paid leave under the FFCRA until September 30, 2021. 
• It would expand the amount of leave available under the FFCRA to 14 weeks. 
• It would expand the reasons for which an employee could take FFCRA leave to include a need “to take time to get the vaccine.” 
• It would also reimburse state and local governments for the costs they incur in providing FFCRA leave.

Please keep in mind that the American Rescue Plan still has to make its way through Congress – it is certainly not guaranteed to be passed in its current form. As Congress reviews the legislation, it is very possible that the proposed FFCRA changes detailed above could be revised or eliminated. Assuming that the American Rescue Plan is passed in some capacity, we will keep you posted regarding its final impact on the FFCRA.       

Please contact John Gardner or any other member of DeWitt’s Employment Relations practice group if you have any questions or need any guidance relating to an employer’s obligations under the FFCRA.