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As we enter the home stretch of 2020 [thank God!], clients are increasingly asking me: Will FFCRA be extended into 2021?

When Congress passed the Families First Coronavirus Response Act (FFCRA) in March, it set the Act to expire on December 31, 2020.

Wishful thinking at the time, wasn’t it? With the end of the pandemic now no where in sight, what are the chances the FFCRA is extended into 2021?

Quick Answer: I. Have. No. Idea.

But wait, before you close your web browser, I still have an opinion! Additionally, a recent study suggests that emergency paid sick leave provided under FFCRA actually has reduced the spread of COVID-19, yet another indicator that FFCRA may have life beyond 2020.

Chances of an FFCRA Extension are Likely

Hey, kids, try as we might, we can’t wish this pandemic away. And while we’re ridding ourselves of 2020 and toasting a New Year 2021, the pandemic surely will be our reality come January 1. As a result, there are plenty of reasons to believe Congress will act to extend FFCRA into the new year:

The FFCRA enjoyed overwhelming bipartisan support. In March 2020, the U.S. House of Representatives passed FFCRA by a whopping 340-40 margin. The Senate gave it a thumbs up by a margin of 90-8. Friends, this was passage of a paid leave law, a feat no Congress before it ever accomplished. Yet, in the wake of a national health crisis, Congress got its act together in mere days and overwhelmingly passed this bipartisan legislation. When it sinks in that the pandemic will continue to wreak havoc on American workers and their families after December 31 this year, it is not a stretch to conclude that Congress likely will act to extend FFCRA shortly before the Times Square ball drop.

There is No Indication FFCRA has had a deleterious impact on American businesses. To be clear, I have no data to back up this statement. Anecdotally speaking, however, as I have counseled employers over the past eight months on this new law, I don’t get any sense from them that the FFCRA has negatively impacted business. This reality makes it far more politically palatable for Congress to extend paid leave benefits to American workers.

The Government already has signaled the pandemic will extend well into the new year. Notably, the U.S. Department of Health & Human Services announced earlier this month that the Public Health Emergency declaration for COVID‑19 will be renewed for another 90 days, which began on October 23 (the date it was previously scheduled to expire) and will extend through January 20, 2021. Of course, this pronouncement is not dispositive of whether FFCRA will be extended, but it seems to be a strong indicator that the federal government has acknowledged we will remain in a pandemic for the foreseeable future and well 2021.

Study Shows that the Availability of FFCRA Leave has reduced the Number of COVID-19 Cases

Care for another reason why my money is on an extension of FFCRA? A recent study has shown that the availability of FFCRA leave actually has reduced the spread of COVID-19. On October 15, 2020, a study published in the Health Affairs Journal concluded that states which gained access to paid sick leave through FFCRA saw a statistically significant 400+ fewer confirmed COVID-19 cases per day.

Let that sink in for a moment. 400+ cases per day.

Led by Nicolas Ziebarth, Associate Professor in the Department of Policy Analysis and Management at Cornell University, the study, which is entitled, “COVID-19 Emergency Sick Leave Has Helped Flatten The Curve In The United States,” draws the following conclusions:

There were statistically significant decreases in the number of reported new COVID-19 cases for states whose workers gained access to paid sick leave as a result of FFCRA.

Specifically, there were 417 fewer reported cases per day in states where workers gained the option to take COVID-19-related sick leave through FFCRA.

This data represents a reduction of about 1 new case per day for every 1300 workers who gained the right to take up to two weeks of paid sick leave due to COVID-19.
As a result, the authors concluded that the availability to paid sick leave under FCRRA “has helped flatten the curve.”

Avoiding 400 confirmed cases in every state each day? Even if the data is a fraction of this number, it’s a compelling reason for Congress to extend FFCRA into 2021.

But then again, what do I know?

Jeff Nowak is a Partner at the law firm of Littler Mendelson and has been named as one of Illinois’ top “40 Attorneys Under 40” to watch in 2012.  Jeff is widely recognized as one of the nation’s foremost FMLA and ADA experts, regularly counseling clients on compliance with FMLA and ADA regulations, conducting FMLA/ADA audits and training, and successfully litigating FMLA and ADA lawsuits.  Jeff is the author of the highly regarded FMLA Insights blog, which has been selected for four consecutive years by the ABA Journal as one of the top 100 legal blogs (2011-2017) and was also voted the No. 2 Labor and Employment blog by LexisNexis.

The above article first appeared in FMLA Insights and is reprinted with Jeff’s permission.

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