This blog post was co-authored by Sarahanne Vaughan.
Just when you had your COVID-19 leave policies in place, Congress goes and passes new legislation: the American Rescue Plan Act (ARPA). Remember, as we outlined in a previous blog post, the Families First Coronavirus Response Act (FFCRA) was passed in March of last year and provided that employers with fewer than 500 employees had to give emergency paid sick leave (EPSL) and emergency family medical leave (EFMLA) to employees for certain reasons related to COVID-19. The FFCRA was set to expire on December 31, 2020, but just a few days beforehand along came the Consolidated Appropriations Acts (CCA), which didn’t extend the FFCRA but rather incentivized employers to continue providing COVID-19-related leave in exchange for a tax credit.
Now, Congress has passed the ARPA. Like the CCA, the ARPA doesn’t require you to give FFCRA paid leave but gives you a tax credit if you choose to do so, at least until September 30, 2021. So, what else is different about the ARPA?
Two Categories of Leave: EPSL and EFMLA
The ARPA increases the qualifying reasons for EPSL to nine — the six original reasons and three new ones. Specifically, you can voluntarily grant EPSL (i.e., 10 days of paid leave — which may be slightly different than the FFCRA’s 80 hours), to an employee who is:
- Subject to state, federal, or local quarantine or an isolation order related to COVID-19
- Advised by a healthcare professional to self-quarantine due to COVID-19 concerns
- Experiencing COVID-19 symptoms and seeking a medical diagnosis
- Seeking or awaiting results of a COVID-19 test after exposure or employer request (NEW)
- Obtaining a COVID-19 vaccine (NEW)
- Recovering from the side effects of a COVID-19 vaccine (NEW)
- Caring for an individual subject to quarantine or an isolation order or who has been advised by a healthcare professional to quarantine due to COVID-19
- Caring for a child under age 18 because schools or places of childcare have closed
- Experiencing any other substantially similar condition as defined by the U.S. Dept. of Health and Human Services
The rate of pay has not changed:
- For reasons 1–6, the employee is paid his or her regular rate, capped at $511/day
- For reasons 7–9, the employee is paid at 2/3 of his or her regular rate, up to $200/day
Resetting the of Amount of EPSL Leave
The ARPA resets an employee’s available EPSL days as of April 1, 2021. In other words, any FFCRA EPSL days an employee took prior to April 1, 2021, will not be counted against his or her available 10 days of ARPA leave. However, there is no carry over, so an employee who has not exhausted all of his or her FFCRA EPSL leave as of April 1, 2021, will not have more than 10 days of EPSL leave on top of any unused leave.
We all know that the FFCRA and CCA provided EFMLA to care for a child due to school or daycare closure due to COVID-19 or to care for a family member. The ARPA extends the EFMLA qualifying reasons to all nine of the EPSL reasons listed above. This is a substantial change.
The ARPA removes the provision that the first two weeks of EFMLA are unpaid. Therefore, employees can now take 12 weeks of paid EFMLA for a qualifying reason.
It is unclear right now whether an employee’s bank of EFMLA resets, as it does with EPSL leave. We will need to wait for Department of Labor (DOL) guidance on this issue.
Remember, although the qualifying reasons for EPSL and EFMLA are the same, EPSL is a separate benefit. An employee who takes two weeks of EPSL still has 12 weeks of EFMLA available. So, it appears that an employee could take up to 14 weeks of paid leave. (Remember, you still get to decide whether to extend this benefit to your employees.)
Intermittent Leave Is Still Up to You
As for intermittent leave, you and the employee must agree to an intermittent leave schedule or it is not available. If your employee needs to take leave to care for his or her child whose school or childcare is closed or unavailable, you can agree to an intermittent schedule, regardless of whether he or she is working remotely. Additionally, if the employee is working remotely (either regularly or because of the COVID-19 crisis), you and the employee can agree to an intermittent schedule. Intermittent leave is not permissible if (a) an employee must report to a worksite (rather than work remotely) and (b) is taking leave because he or she is sick with or is taking care of someone who is sick with COVID-19.
Employers who voluntarily give EPSL and EFMLA can continue to take a tax credit. However, the ARPA disqualifies employers from receiving a tax credit if they (1) fail to comply with any provisions of the FFCRA, including its anti-retaliation provisions, or (2) discriminate in favor of highly compensated employees, full-time employees, or employees on the basis of their employment tenure.
Keep in mind that you are still not required to continue giving EPSL and EFMLA. This is new legislation, so keep an eye out for new regulations and clarifications from DOL. In the meantime, if you choose to make this leave available to your employees, make sure to review the qualifying reasons for leave and follow the rules on the amount of leave and time available.