By Jodi Schafer, SPHR, SHRM-SCP
QUESTION: I’m confused about the Families First Coronavirus Response Act (FFCRA) leave. I know that last spring paid leave under FFCRA for coronavirus-related reasons was mandated for our business. Guidance came out piecemeal and it was a bit of a mess for a while. I thought it ended in December, but now I am seeing information about it being extended through September. Is this mandatory? Do the banks reload if the employee used up all of their time last year? Help!
ANSWER: You are correct that the mandate to offer paid sick leave and paid family leave under FFCRA expired on December 31, 2020. However, there was an extension granted to the payroll tax credit portion of FFCRA which allowed eligible employers to voluntarily continue offering paid FFCRA leave through the end of March and utilizing the payroll credits to get reimbursed for those leaves. This initial extension didn’t change any of the other FFCRA provisions. However, the recently enacted American Rescue Plan, a stimulus package worth $1.9 trillion dollars, resulted in not only another extension of tax credits for FFCRA leave but also key changes to the policy language itself.
Beginning April 1st and ending on September 30th, 2021, employers with less than 500 employees will be allowed to continue offering paid leave under FFCRA. This is a voluntary program, not mandatory as it was in 2020. The tax credits will continue to be the reimbursement mechanism, so those have been extended again – this time until the end of September. Unlike before, employee leave banks will RELOAD on April 1st, even if the employee had exhausted their FFCRA hours previously. Other changes to the newly revised FFCRA language include additional reasons for paid leave and the maximum length of leave granted. First, let’s review the reasons an employee could request paid sick leave and paid family leave under the old plan:
“Two weeks (up to 80 hours) of paid sick leave at the employee’s regular rate of pay where the employee is unable to work because the employee is quarantined (pursuant to Federal, State, or local government order or advice of a health care provider), and/or experiencing COVID-19 symptoms and seeking a medical diagnosis; or
Two weeks (up to 80 hours) of paid sick leave at two-thirds the employee’s regular rate of pay because the employee is unable to work because of a bona fide need to care for an individual subject to quarantine (pursuant to Federal, State, or local government order or advice of a health care provider), or to care for a child (under 18 years of age) whose school or child care provider is closed or unavailable for reasons related to COVID-19, and/or the employee is experiencing a substantially similar condition as specified by the Secretary of Health and Human Services, in consultation with the Secretaries of the Treasury and Labor; and
Up to an additional 10 weeks of paid expanded family and medical leave at two-thirds the employee’s regular rate of pay where an employee, who has been employed for at least 30 calendar days, is unable to work due to a bona fide need for leave to care for a child whose school or child care provider is closed or unavailable for reasons related to COVID-19.
The revised FFCRA language in the American Rescue Plan adds three additional qualifying reasons to paid sick leave. These include:
- Obtaining a COVID-19 vaccine;
- Recovering from any illness or condition related to the COVID-19 vaccine; or
- Seeking or awaiting the results of a COVID-19 diagnosis or test if either the employee has been exposed to COVID-19 or the employer requested the test or diagnosis.
It’s not just paid sick leave that has been affected. Paid medical leave has been expanded to 12 paid weeks vs. 10 paid weeks and the qualifying reasons for paid medical leave now include any of the reasons found under paid sick leave. This means that an employee could potentially be out for 14 paid weeks (2 weeks of paid sick leave + 12 weeks of paid medical leave), assuming the employee had not previously used any paid family leave under FMLA rules.
As of the writing of this article, the Department of Labor has not yet released guidance to aid employers and employees in interpreting these new rules. What we do know is that this continues to be a voluntary program. As such, the thinking is that you can decide to enact none, all, or a portion of it as you see fit, so long as your decision doesn’t discriminate in favor of highly compensated employees, fulltime employees or on the basis of employment tenure. Be sure to check the Department Labor website for real-time guidance and answers to frequently asked questions if you are planning to continue offering FFCRA leave in your business.