Furthermore, the FFCRA introduced additional paid leave entitlements under the Emergency Paid Sick Leave Act ("EPSLA"). The EPSLA provides employees with up to eighty (80) hours of paid leave if they are unable to work (or telework) for any of the following reasons:

1. The employee is subject to a Federal, State, or local quarantine or isolation order related to COVID-19.
2. The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19.
3. The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis.
4. The employee is caring for an individual who is subject to an order as described in subparagraph (1) or has been advised as described in paragraph (2).
5. The employee is caring for a son or daughter of such employee if the school or place of care of the son or daughter has been closed, or the child care provider of such son or daughter is unavailable, due to COVID-19 precautions.
6. The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.

As is stands today, the leave entitlements available under the EFMLA and the EPSLA are set to expire at the end of the year. There is a slight possibility that Congress may take legislative action to extend the leave entitlements available under the EFMLA and the ESPLA, but there is no indication (at least at this time) that they will; and while hope is now on the horizon (administration of the COVID-19 vaccine has begun across the country) the need for the relief provided by the FFCRA is as present today as it was back in March.

If no legislative action is taken, employers will have to consider whether to offer expanded leave entitlements moving forward. This is especially relevant given that schools (as well as a number of industries) remain closed due to the COVID-19 pandemic.

Without definitive legislative guidance, employers should be mindful of their current employment policies, as well as any potential obligations under state law, when determining if/how they will accommodate affected individuals moving forward. Given the continued need to protect employees as well as ensure business continuity, employers are encouraged to remain flexible as they deal with the realities of the pandemic. For example, employers may consider continued work-from-home opportunities (when available), or even modified work schedules when it makes sense for both the employer and the employee.

As the new year fast approaches, employers should review their current employment policies and make sure that they have the processes in place to deal with these situations moving forward. While the hope is certainly that the need for leave under the EFMLA and EPSLA becomes moot, these issues may be prevalent well into the new year given the uncertainty surrounding the pandemic and its end.

Kevin Brady, Esq., is an attorney with The Phia Group. As a member of the consulting team, Kevin works on general consulting, plan document compliance, contract gap reviews, and general compliance issues.

Read more: 

• Federal judge invalidates some FFCRA regulations, DOL 'fixes' them
• What employers should know about the DOL's revised COVID-19 leave regulations
•  FFCRA gets test in lawsuit over self-quarantine