The American Rescue Plan Act of 2021 Gives Eligible Employers Another Shot at Optional Employee Leave in Exchange for Tax Credits

The Families First Coronavirus Response Act (FFCRA) was set to expire on December 31, 2020. This act required employers with 500 or fewer employees to provide paid sick leave (PSL) and/or emergency family and medical leave (EFML) to eligible employees. Employers could then receive tax credits to offset paid leave amounts. The leave mandate under the FFCRA ended on December 31, 2020.

On December 27, 2020, another COVID-19 stimulus bill was signed into law, the Consolidated Appropriations Act (CAA). The CAA gave employers the option to voluntarily extend PSL and EFML to employees and receive tax credits for amounts paid. The CAA did not include any substantive changes to the leave provisions of the FFCRA. The CAA expired on March 31, 2021. 

Now, we have yet another COVID-19 stimulus bill that again extends the leave provided for under the FFCRA. This act, the American Rescue Plan Act of 2021 (ARPA), gives covered employers the right to voluntarily extend PSL and EFML to their employees and receive tax credits for amounts paid. The ARPA expires on September 30, 2021. 

Unlike the CAA, the ARPA includes substantive changes to the leave provisions of the FFCRA and there are several provisions in the ARPA that bear highlighting. 

1. The ARPA expands the reasons for leave. Qualifying reasons to take EFML now include the reasons previously reserved for PSL. Meaning, an employee could take EFML because the employee: 1. Is subject to a quarantine or isolation order, 2. Has been advised by a health care provider to quarantine, 3. Is experiencing COVID symptoms and seeking a medical diagnosis, 4. Is caring for someone subject to a COVID quarantine, 5. Is caring for a son/daughter whose school/care provider is closed or unavailable due to COVID, or 6. Is experiencing any other substantially similar condition specified by the Secretary of the Department of Health and Human Services. Prior to the ARPA, an employee was only eligible for EFML if the employee was caring for his or her son or daughter whose school or place of care was closed or whose child care provider was unavailable due to a public health emergency, defined as an emergency with respect to COVID declared by a Federal, State or local authority.
2. The ARPA expands the reasons for leave to include an employee who is: 1. Obtaining a COVID vaccine, 2. Recovering from an injury, disability, illness or condition related to COVID immunization, or 3. Seeking or awaiting the results of a COVID test or diagnosis because either the employee has been exposed to COVID or the employer requested the test or diagnosis.
3. The ARPA increases the amount of tax credits available for EFML from $10,000 to $12,000.
4. The first two weeks of EFML do not have to be unpaid. Meaning an employee could potentially have 14 weeks of paid leave (2 PSL and 12 EFML).
5. The ARPA includes anti-discrimination language. The ARPA prohibits discrimination with respect to leave: 1. In favor of highly compensated employees, 2. In favor of full-time employees, or 3. On the basis of employment tenure. If an employer engages in discrimination prohibited under the ARPA, the employer will not be able to obtain tax credits for any leave provided under the FFCRA framework.
6. The 80 hours/10 days of PSL restarts under the ARPA. 

Whether or not to provide PSL or EFML to employees is a decision each employer should evaluate based on the needs of the employer. An employer will want to consider safety concerns, risk of COVID exposure, staffing impacts, as well as documentation requirements to ultimately obtain the tax credits.

There are still a lot of unanswered questions regarding the optional leave under the ARPA. We anticipate that the Department of Labor and/or the Department of Revenue will provide additional guidance in the coming days. 

For more information contact Natalie Clouse at nclouse@bradleyriley.com.