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Though more and more Americans are receiving a COVID-19 vaccine each day (there’s a light at the end of the tunnel!), employers aren’t quite done handling employee requests for time off work for COVID-19-related reasons. The American Rescue Plan Act (ARPA) went into effect on April 1, 2021, and has extended the tax credits for paid leave made available under the Families First Coronavirus Response Act (FFCRA). Though the leave is still voluntary, ARPA imposes additional new requirements on participating employers.

New 80 Hours of EPSL

To receive the FFCRA tax credit, employers must provide all employees with up to 80 hours of Emergency Paid Sick Leave (EPSL) from April 1, 2021, through September 31, 2021. Employers are not required to provide employees with additional leave under the Emergency Family and Medical Leave Act (EFMLEA).

Expanded Coverage for EPSL

You probably know that the original FFCRA identified five triggering events for EPSL:

  1. The employee is subject to a government quarantine or isolation order;

  2. A health care provider advises the employee to quarantine or self-isolate;

  3. The employee is experiencing symptoms of COVID-19 and is seeking a medical diagnosis;

  4. The employee is caring for an individual who is subject to a government quarantine or self-isolation order or who has been advised to quarantine or self-isolate by a health care provider; or

  5. The employee is caring for a child whose school or place of care is closed or otherwise unavailable for reasons related to COVID-19.

For employers who wish to continue EPSL benefits, ARPA creates additional triggering events for EPSL:

—-6. The employee is seeking or awaiting the results of a diagnostic test for or a medical diagnosis of COVID-19;

—-7. The employee has been exposed to COVID-19;

—-8. The employee has requested COVID-19 testing or a diagnosis;

—-9. The employee is obtaining immunization related to COVID-19; or

—-10. The employee is recovering from an injury, disability, illness, or condition related to such immunization after a public health emergency.

Expanded EFMLEA

The FFCRA also created the EFMLEA, which created paid FMLA leave for employees who were unable to work because they were caring for a child whose school or place of care was closed or otherwise unavailable due to reasons relating to COVID-19. Under the FFCRA, the first two weeks of EFMLEA leave were unpaid. Now, all leave under the EFMLEA is paid, and the maximum amount payable to employees on EFMLEA leave is increased from $10,000 to $12,000

In addition to the payment expansion, under ARPA, employees may take EFMLEA leave for any reasons they could take EPSL under the FFCRA, meaning employees may take up to 12 weeks of leave for reasons 1–5 listed above.

Non-Discrimination Requirements

Employers will be disqualified from claiming the applicable tax credits if they fail to offer paid leave benefits under ARPA in a neutral manner. This means employers cannot provide the benefits to only certain classes of employees, such as full-time employees, highly compensated employees, certain departments, or any other distinction between employees.

Other Considerations

To be eligible for the applicable tax credit under ARPA for providing either paid leave under the EPSLA or EFMLEA, employers must provide the leave exactly how it was required under the FFCRA plus the additional requirements under ARPA—this means employers cannot pick and choose certain parts with which they are willing to comply. However, it does appear that employers may choose to offer continued EPSL without offering continued leave under the EFMLEA and vice versa while still maintaining eligibility for the tax credit.

Thompson Coe and myHRgenius Tip of the Week is not intended as a solicitation, does not constitute legal advice, and does not establish an attorney-client relationship.


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Kevin M. Mosher

Kevin M. Mosher


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