On March 11, 2021, the American Rescue Plan Act (“ARPA”) was signed into law. Under the ARPA, notable changes were made to the emergency paid sick leave and family leave provided under the federal Families First Coronavirus Response Act (“FFCRA”). As of April 1, 2021, the ARPA now extends the tax credits provided under FFCRA through September 30, 2021 for employers voluntarily providing FFCRA leave beyond December 31, 2020. Additionally, the ARPA has implemented certain changes to paid sick leave and emergency family leave eligibility.
FFCRA leave remains voluntary and is provided at the employer’s option.
Changes to Paid Sick Leave
Previously, FFCRA required employers with fewer than 500 employees to provide two weeks or up to 80 hours of paid leave for specific COVID-19 related qualified reasons. Under the ARPA, employees are eligible for an additional two weeks or up to 80 hours of paid leave for specific COVID-19 related purposes.
The ARPA also adds three additional qualifying reasons for paid sick leave eligibility.
Obtaining the COVID-19 vaccine.
Recovering from any illness or condition related to the COVID-19 vaccine.
Seeking or awaiting the results of a COVID-19 medical diagnosis or test when the employee has been exposed to COVID-19 or the employer has requested the test or diagnosis.
Under the ARPA, the tax credit granted to employers, for leave in connection with an individual's own health condition (including vaccine-related leave) remains equal to the employee's regular rate of pay, up to a maximum of $511 per day – and the tax credit for other forms of leave remains capped at two-thirds the regular rate of pay, up to $200 per day.
Changes to Emergency Family Leave
In addition to the paid leave, FFCRA also required employers to provide 12 weeks of extended family leave to employees for childcare purposes, however, the first two weeks of this leave were unpaid, and the leave was capped at $10,000. Under the ARPA, employees are now provided a full 12 weeks of paid leave with a cap of $12,000.
As previously noted, under FFCRA, employees were eligible to take emergency family leave only for purposes of childcare during school and day care closures due to COVID-19. The ARPA extends the list of eligible reasons for emergency family leave – now employees are eligible for emergency family leave if they satisfy paid sick leave requirements, including the three new qualifying reasons discussed above. This change permits employees to combine paid sick leave and emergency family leave when more time off is required, for up to a total of 14 weeks (provided they have not previously used their emergency family leave).
The ARPA states that in providing FCRA leave, employers may not discriminate :
In favor of highly compensated employees;
In favor of full-time employees; or
On the basis of employment tenure.
Discrimination in violation of this requirement will trigger a loss of tax credit for the calendar quarter in which any discrimination occurred.
Employers will need to review current leave policies and make the necessary changes to stay in compliance with the updates to the FFCRA under the ARPA.
Our Firm has extensive experience counseling employers and businesses on employee and labor law issues, and preparing applicable employee policies, particularly relating to the evolving regulations during the COVID-19 pandemic. If you have any questions related to this Legal Briefing or questions related to COVID-19 reopening rules and procedures, please contact any member of our Firm at 585-730-4773. Please note that any embedded links to other documents may expire in the future.
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This Legal Briefing is intended for general informational and educational purposes only and should not be considered legal advice or counsel. The substance of this Legal Briefing is not intended to cover all legal issues