The longest year in history is nearing its end and so too is the Families First Coronavirus Response Act (“FFCRA” or the “Act”). As conditions remain dire—or even worsen—employees will feel the pinch of losing the FFCRA’s protections. A subset of them, however, might be able to avail themselves of the Americans with Disabilities Act (“ADA”).
The FFCRA was passed to support eligible workers who required COVID-19 sick leave or needed time off to care for children who were home due to school and day care closures. The FFCRA provided many employees with income and job protections that otherwise would not have been available. The federal government also granted support to employers by promising refundable tax credits to offset the expense of providing coverage to employees. Unfortunately, the Act expires December 31, 2020, which will leave most currently covered employees with few remaining protections.
Many of us are ready to put 2020 in the rearview mirror and look forward to the promise of 2021. COVID-19 vaccines are arriving in the U.S., and it appears an end to virus closures may be on the horizon. However, it will take months to get vaccinations to the general public and the true timeline for public safety is unknown. Many schools are still closed and infection rates in the U.S. continue to be on the rise.
As we near the end of the year, it is becoming fairly clear that Congress is unlikely to take steps to extend the FFCRA. Employers will not benefit from government support if they choose to extend COVID-19-related benefits, and employees who require COVID-19 leave or childcare accommodations will have limited legal protections. The impact of the Act’s expiration is yet unknown, but it is likely that employers will see an increase in claims under the ADA, as well as other claims.
One option for employees may be to seek protection under the ADA. Although the ADA does not provide equivalent protections to those granted under the FFCRA, it does offer coverage for mental health disabilities. According to Massachusetts General Hospital, anxiety and depression have been on the rise during the coronavirus pandemic. Removing one of the few safety nets that protects employment and addresses the familial repercussions created by the pandemic is likely to increase that number of workers struggling with mental health.
Employers need to be prepared to address employee mental health leave requirements. This does not necessarily mean providing the same or similar benefits to those promised under the FFCRA. It means carefully evaluating requests for reasonable accommodations and engaging in the ADA’s interactive process with employees to find suitable solutions for mental health issues.
If current numbers are any indication, COVID-19 is not going away with the expiration of the Act, and neither are its mental health ramifications. Employers should confer with their management teams and business and employment counsel to create a proactive response plan to handle fallout from the FFCRA’s expiration and the potential for a subsequent rise in ADA issues, and even claims.
For practical tips on supporting your employees’ mental health during the coronavirus pandemic, refer tothis post.