In March 2020, in response to the COVID-19 pandemic, the U.S. government expeditiously signed into law historic, temporary measures to provide certain employees mandatory paid sick and family leave if the leave was related to particular COVID-19 related absences from work. The FFCRA’s original qualifying reasons included leave for an employee who is: subject to a Federal, State, or local quarantine or isolation order related to COVID-19; subject to the advice of a health care provider to self-quarantine related to COVID-19;experiencing COVID-19 symptoms and is seeking a medical diagnosis; caring for an individual subject to an order described in (i) or in self-quarantine as described in (ii); or caring for a child whose school or place of care is closed (or child care provider is unavailable) for reasons related to COVID-19. The paid family leave portion is called the Emergency Expansion of the Family Medical Leave Expansion Act (EEFMLA). The paid sick leave provisions are referred to as Emergency Paid Sick Leave Act (EPSLA). The new laws should be refenced collectively as the Family First Corona Virus Response Act (FFCRA) and should be viewed in tandem.
The FFCRA’s mandatory leave requirements expired on December 31, 2020, but the stimulus package passed by Congress, in late December of 2020, provided that employers could voluntarily allow employees to use the remainder of their allotted EPSL or EFMLA for qualifying reasons through March 31, 2021.
On March 11, 2021, President Biden signed the American Rescue Plan Act of 2021 (ARPA) into law. Among other provisions, the ARPA extends tax credits available to employers with fewer than 500 employees who voluntarily choose to grant employees paid leave under the Families First Coronavirus Response Act (FFCRA) through September 30, 2021, and also updates certain FFCRA leave provisions. Here are some key sections from the ARPA, which will take effect on April 1, 2021:
As has been the case since January 1, 2021, employers can voluntarily choose to grant FFCRA paid leave to employees for qualifying reasons and take advantage of tax credits for the leave. Under the new law, these tax credits are available to employers with fewer than 500 employees who voluntarily provide FFCRA leave to qualifying employees through September 30, 2021.
Employers who choose to voluntarily provide FFCRA leave must be aware of new non-discrimination rules contained in the ARPA. Under these new provisions, FFCRA tax credits are not available to employers who discriminate in favor of highly compensated employees, full-time employees, or employees on the basis of tenure in providing FFCRA benefits.
The ARPA expands the list of qualifying reasons for taking FFCRA paid leave to include: for an employee who is seeking or awaiting results of a test for or a diagnosis of COVID-19; for an employee who is obtaining COVID-19 immunization; and for an employee is recovering from any injury, disability, illness or condition related to COVID-19 immunization.
The new law refreshes the 10-day time off bank for FFCRA paid sick leave, effective April 1, 2021. As such, employees, who exhausted their FFCRA sick leave prior to April 1, will still be eligible for up to 10 days of FFCRA paid sick leave, and employers will be able to take tax credits for such leave if they choose to provide it.
Previously, expanded family and medical leave (EFMLA), under the FFCRA could only be taken by employees caring for children whose schools or place of care was closed, or whose care provider was unavailable for reasons related to COVID-19. However, beginning April 1, 2021, EFMLA can be taken for all of the reasons that an employee can take FFCRA paid sick leave, including all of the new qualifying reasons listed.
In light of the ARPA’s provisions, employers had to decide whether they would provide qualifying paid sick and family leave to employees until September 30, 2021 and had to draft and implement applicable policies in response to their decisions. Employers who discontinued their FFCRA leave programs should have removed them from their policy documents. Employers who voluntarily continue their leave programs must notify employees of the new September 30, 2021 expiration date and any other policy changes. Employers should be mindful of any other applicable federal and state leave laws, such as the FMLA and the New Jersey Paid Sick Leave law. In addition, organizations must be aware, and be prepared to remediate, any micro-aggressions or discrimination that is related to COVID-19, such as in regard to Asian Americans; Indian Americans; and disabled Americans.
