COVID-Related Leave Provisions – What Employers Need to Know

Crowe & Dunlevy

While mandated leave under the Families First Coronavirus Response Act came to an end with the 2020 calendar year, the FFCRA continues to provide a valuable tool for qualifying employers to offer paid pandemic-related leaves to employees while funding these benefits through tax credits.

With the recent passage of the American Rescue Plan Act, or ARPA, Congress extended the provisions of the FFCRA until Sept. 30 and, effective April 1, expanded some of its key provisions. Employers who choose to take advantage of these benefits, though, should be mindful of key compliance requirements upon which the availability of the offered tax credits apply.

Under FFCRA, public and private employers with fewer than 500 employees can continue to provide paid leave for certain pandemic-related absences. Through ARPA, Congress extended and expanded the leave provisions that allow qualifying employers to offer expanded Family and Medical Leave (EFML) as well as the Emergency Paid Sick Leave (EPSL) on a voluntary basis and to continue to claim related tax credits. Previously, the use of EFMLA was limited solely to the provision of child care due to school or day care closure, but the ARPA now allows the use of EFML for any of the reasons that qualify for EPSL.

Congress has also added three new qualifying reasons to take leave under FFCRA:

  • When an employee is seeking or awaiting results of test for or diagnosis of COVID-19.
  • When an employee is being vaccinated for COVID-19.
  • When an employee is recovering from an injury, disability, illness or condition related to COVID-19 immunization.

ARPA has provided for these additional protections:

  • Under ARPA, all 12 weeks of EFMLA are paid.
  • As of April 1, employees at qualifying, voluntarily complying employers have access to 80 hours of EPSL, including those who had previously exhausted their leave. ARPA also increased the maximum tax credit allowable per employee for EFMLA from $10,000 to $12,000.
  • Anti-retaliation provisions are also covered under ARPA. An employer offering benefits under the FFCRA will be disqualified from receiving the accompanying payroll tax credit if the employer fails to comply with the FFCRA, including its anti-retaliation provisions or discriminates in favor of highly compensated employees, full-time employees or tenured employees.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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