Employee Leave Laws Impacted by Latest COVID Package
By Jennifer Ryback,
Shareholder at McGuire, Craddock & Strother, P.C.
March 18, 2021
As discussed in a previous article, The Families First Coronavirus Response Act: A Summary for Employers, the Families First Coronavirus Response Act (FFCRA) imposed two leave mandates on employers with fewer than 500 employees—(1) under the Emergency Paid Sick Leave Act (EPSLA), a two-week emergency paid sick leave mandate for employees unable to work or telework due to six specific reasons related to COVID-19; and (2) under the Emergency Family and Medical Leave Expansion Act (EFMLEA), a temporary expansion of coverage under the Family and Medical Leave Act (FMLA) for leave related to school and childcare closures associated with COVID-19. Under the FFCRA, employers are reimbursed for any paid sick leave or paid family and medical leave provided to employees under the EPSLA or the EFMLEA, respectively, via payroll tax credits.
As of December 31, 2020, the two leave mandates under the FFCRA expired, but the stimulus bill passed in December of 2020 gave employers the option to voluntarily allow its employees to use any remaining leave under either the EPSLA or the EFMLA through March 31, 2021, and allowed employers to continue receiving the corresponding payroll tax credits. It is important to note that Congress did not provide new banks of leave at that time; rather, if an employee had not used all two weeks of leave under the EPSLA or twelve weeks of leave under the EFMLA as of December 31, 2020, the employer could (but did not have to) allow the employee to use any remaining leave until March 31, 2021.
More recently, on March 11, 2021, President Biden signed the American Rescue Plan Act of 2021 (the “ARPA”) into law. Under the ARPA, employers can continue to voluntarily provide paid leave for a COVID-19-related reason through September 30, 2021, and if they do so, employers will receive the corresponding payroll tax credit. The ARPA also provides that employers may grant a new ten-day bank of leave under the EPSLA starting on April 1, 2021. The ARPA also adds three new reasons an employee may take leave under the EPSLA (adding to the original six reasons): (1) the employee is getting a COVID-19 vaccine; (2) the employee is recovering from adverse reactions to the vaccine; and (3) the employee is seeking or awaiting the results of a COVID-19 test or diagnosis (including where the employer has requested the test or diagnosis).
Prior to passage of the ARPA, leave under the EFMLA was only available (and the corresponding payroll tax credits could only be claimed) for leave related to school and childcare closures associated with COVID-19. Under the ARPA, leave under the EFMLA is now available for all of the qualifying reasons for leave under the EPSLA (the original six and the three new reasons set forth above). The ARPA also removed the unpaid two-week provision established by the FFCRA, so that the entire (up to) twelve weeks of leave under the EFMLA is paid. The corresponding per-employee payroll tax credit limit has been increased to $12,000.
Notably, under the ARPA, an employer cannot claim the tax credits related to providing leave under either the EPSLA or the EFMLEA if the employer discriminates in favor of highly compensated employees or full-time employees, or discriminates on the basis of employment tenure, in providing leave under the EPSLA or the EFMLEA.
The Department of Labor will issue regulations or other guidance to implement these new provisions. And, like it has several times since Congress passed the FFCRA, the Department of Labor is expected to revise its detailed set of Q&As, which can be found here: https://www.dol.gov/agencies/whd/pandemic/ffcra-questions.
For more information, please contact Jennifer Ryback at firstname.lastname@example.org.
This correspondence should not be construed as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general informational purposes only, and you are urged to consult a lawyer concerning your own situation and legal questions. The information contained herein is current as of the date of this article.