In March of last year, when the pandemic hit, we spent a lot of time implementing the required Covid-19-related paid leaves of absence. We drafted leave forms and gave notice to our employees of the right to take these leaves, and we are very proud of our successful efforts in ensuring that employees were provided the leaves to which they were entitled.
Then, in December of 2020, with the required leaves coming to an end, we made the decision to voluntarily extend them to our employees until March, which we believed we should do given the opportunity to take advantage of the payroll tax credit that Congress had extended until March 31, 2021. Again, all went well.
We are now aware of the new laws that affect the FFCRA paid leaves after March. At this point, we are getting confused about what we must, or should, do considering this new set of laws. Could you please give us some idea of what these laws are about and what our continuing responsibilities are?
As if dealing with the pandemic weren’t difficult enough, the series of paid-leave laws enacted over the past year only increases that difficulty. The best way to understand what the new leave laws provide is to take a quick look back into the past.
The Families First Coronavirus Response Act, or FFCRA, went into effect on April 2, 2020. Among other things, it created two new forms of paid leave that employers of 500 or fewer employees were required to provide for employees who were dealing with Covid-19 “qualifying reasons.”
The first form of paid leave was the Extended Family Medical Leave (EFMLA), which provided up to 10 weeks of paid leave for one qualifying reason: to provide care for a child whose school was closed or caregiver unavailable due to Covid-19. The second was the Emergency Paid Sick leave (EPSL), which provided for 80 hours of paid leave. The primary qualifying reasons for this leave were the following:
- The employee is subject to a federal, state, or local quarantine or isolation order related to COVID-19.
- The employee has been advised by a health care provider to self-quarantine because of COVID-19.
- The employee is experiencing symptoms of COVID-19 and is seeking a medical diagnosis.
- The employee is caring for an individual subject or advised to quarantine or self-isolate.
- The employee is caring for a child whose school or place of care is closed, or whose childcare provider is unavailable, due to Covid-19 precautions.
Both of these leaves were protected, meaning that on their return to work the employee was entitled to be restored to their position and that retaliation for taking leave was specifically prohibited. FFCRA also gave the employer a 100% payroll tax credit as reimbursement.
I’m glad your experience with administering and providing these leaves went well. In December 2020, however, with the expiration of the FFCRA leaves quickly approaching, employers had a decision to make. On December 27, 2020, new legislation was signed into law that did not renew the mandatory nature of the FFCRA leaves. In a bid to support employers, it did extend the reimbursement tax credit for employers who voluntarily chose to provide these leaves to employees who satisfied the previously described qualifying reasons. If employers chose to extend these leaves and to take the tax credit, the qualifying reasons established under FFCRA that allowed the employees to take this paid leave were applicable. That ability to use the tax credit lasted until March 31, 2021.
As you note, this paid-leave odyssey is not over. On March 11, 2021, the President signed the American Rescue Plan Act of 2021 (ARPA). Under ARPA, the employer still could voluntarily provide both of the FFCRA paid leaves on a voluntary basis by extending the reimbursement tax credit through September 30, 2021.
Perhaps most significantly, ARPA adds three more qualifying reasons that leave may be granted, reasons that reflect the more widespread availability of the Covid-19 vaccines, which did not exist when FFCRA was originally created. Leave may now be granted for these additional qualifying reasons:
- Obtaining a Covid-19 immunization
- Recovery from an injury, disability, illness, or condition related to immunization
- Seeking or awaiting the result of a Covid-19 test or diagnosis when the employee has either been exposed to Covid-19 or the employer has requested the test or diagnosis
Clearly, the vaccine-related qualifying reasons help to encourage employees to consider vaccination.
In addition, if the employer extends these paid leaves, ARPA creates a new 10-day, 80-hour period of paid leave starting on April 1, 2021. Under this new category, where an employer has extended this leave after April 2021, employees who have already used all of their EPSL allotment have another 10-day, 80-hour period of paid sick leave available to them.
It is also important to note that many states and municipalities have enacted their own Covid paid sick leave laws that may track with, but not be identical to, what ARPA has created this year. For example, these state laws may be mandatory, whereas FFCRA remains strictly voluntary. By the same token, the states’ leave enactments do not, and cannot, provide the tax credit for reimbursement.
In your ongoing efforts to deal with these paid leaves and what you provide to your employees, you should first consider whether there is a state or local mandatory leave that you must comply with. If there is no such requirement, consider the benefits of extending the FFCRA leaves, such as encouraging reluctant employees to get vaccinated, which helps to keep other employees from being exposed, and working more efficiently overall to get Covid out of the workplace altogether, which protects everyone’s safety. Oh, yes, and don’t forget the extended tax credit.
Mike Bishop is a member of the State Bar of California and has been admitted to practice in a number of federal district courts in both California and Ohio. During his legal career, Mike worked for 32 years with a Sacramento law firm, where he focused on employment litigation in both state and federal courts. During that time, he defended employers in litigation. In 2016, he began his work as an Employment Risk Manager for the Nonprofits Insurance Alliance, assisting nonprofits in evaluating employment risks. Mike lives in Lakewood, Ohio, and is a graduate of the University of California, Davis, with a bachelor’s degree in political science, and a 1982 graduate of the University of the Pacific, McGeorge School of Law.
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