When the pandemic struck and many childcare operations and schools closed, it became clear that employees might need more leave and flexible scheduling. While the country is slowly climbing out of the pandemic, leave policies still need to comply with state and federal laws and work for the employer and employees, said Katharine C. Weber, a principal at the law firm Jackson Lewis P.C.

“Taking care of our employees beyond what the law requires matters to us,” Weber said during the recent webinar, “Untangling the Web of Leave Laws: How to Comply and Succeed During COVID and Beyond.” “Taking care of our customers matters to us too. Our quest is to find that right balance and flexibility and creativity that is necessary to take care of our employees and our clients during these continued unsettling times.”

When it comes to balancing these two principles, Weber said there are an array of issues to look at to ensure employers are complying with the law. Specifically, she said last year’s Families First Coronavirus Response Act details how organizations with fewer than 500 employees provide leave. FFCRA, which had mandatory paid leave requirements related to COVID-19, was in effect through Dec. 31, 2020. Employers could voluntarily comply with FFCRA through March 31 of this year and continue to receive the law’s tax benefits.

“It is a great way for employers to take a tax credit if they’re already inclined to give this time off work anyway,” Weber said.

Even though March 31 is right around the corner, FFCRA’s rules aren’t quite going away. “The question hot on everyone’s minds is what happens after March 31, 2021,” Weber said. “Well, the American Rescue Plan kicks in. It extends to employers the opportunity to continue to provide voluntary FFCRA leave beginning April 1 through the end of September of this year.”

State, Local, and Other Federal Laws

In addition to the federal laws regarding pandemic leave, it’s important for organizations to understand how state and local paid leave laws affect them, particularly if employees are working remotely.

“If they’ve got folks who are going to continue to be working from their homes from a different state, you really have to keep your eye on what the paid sick leave laws are in that jurisdiction where the employee is performing work,” Weber said.

She noted that at least 30 jurisdictions have their own paid sick leave laws and other states are considering legislation. While laws related to sick leave seems obvious when it comes to the pandemic, other laws are still a concern.

According to Weber, workplace discrimination against employees who care for family members, called Family Responsibilities Discrimination (FRD) or caregiver discrimination, is an escalating problem that can disadvantage employees and put employers at legal risk.

“I can’t make a stereotypical assumption about how my female employees will handle a promotion because she just recently had a new baby,” Weber said. “The mirror image of that is male caregivers sometimes face the exact opposite stereotypical assumptions. Their colleagues assume they won’t take family medical leave, or they won’t take the full allotment of family medical leave.”

At a time when parents are facing more childcare responsibilities due to full or partial pandemic closures, Weber said it is important to “be on guard and making sure we are alert for and rooting out stereotypical assumptions.”

On that same note, as organizations look to make accommodations for working parents, they also need to ensure that they treat other employees equally.

“What happens when we are beyond complying with the law for parents because we are trying to be flexible and accommodating, but then we get a request from someone who doesn’t have a child or who is older?” Weber said. “Are we equally flexible with those individuals as well? If we are not, might we be flirting with some sort of a discrimination claim?”

Flexible Scheduling

While leave is a great thing, it’s not always the answer. As organizations look to navigate staff needs, Weber suggested being creative and flexible. That may mean allowing earlier or later start times, reassigning an employee to another role, or allowing someone to shift to part-time status.

“The big takeaway is there is no one-size-fits-all solution,” Weber said. “You can take this information and consider it at the start of a brainstorming session and think about what might work in order to help your employees.”

How has your association updated or tweaked its leave policies due to the pandemic? Let us know in the comments.

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