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Employers With Under 500 Employees May Voluntarily Offer FFCRA Leave Through September 30, 2021 in Exchange For Payroll Tax Credits

May 28, 2021
By Haeggquist & Eck

In the beginning of the COVID-19 pandemic, Congress passed the Families First Coronavirus Response Act (FFCRA) which temporarily expanded the existing Family and Medical Leave Act by requiring all private and most public employers with less than 500 employees to provide their employees with up to 12 weeks of paid job-protected leave for certain COVID-19-related reasons. In exchange, employers were able to claim payroll tax credits for the benefits paid for their employees who took FFCRA leave through December 31, 2020, when the FFCRA mandated leave requirement expired.

Since then, two additional laws – the Consolidated Appropriations Act of 2021 (CAA) and the American Rescue Plan Act of 2021 (ARPA) – amended the FFCRA to allow employers to claim these payroll tax credits through March 31, 2021 (under the CAA) and now through September 30, 2021 (under the ARPA) if they voluntarily continue to offer paid FFCRA leave to their employees. So, how does this work and what has changed?

FFCRA Qualifying Reasons Have Been Expanded

Under the FFCRA, an employee qualified for paid job-protected leave if the employee was:

  1. Subject to a federal, state, or local quarantine, or isolation order related to COVID-19;
  2. Advised by a health care provider to self-quarantine due to COVID-19 concerns;
  3. Experiencing COVID-19 symptoms and seeking medical diagnosis;
  4. Caring for an individual subject to a federal, state, or local quarantine, or isolation order, or advised by a health care provider to self-quarantine due to COVID-19 concerns;
  5. Caring for the employee’s child if the child’s school or place of care was closed or the child’s care provider was unavailable due to a public health emergency; or
  6. Experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.

Under the ARPA, all these FFCRA grounds for eligibility still apply and have been expanded to qualify an employee who is:

  1. Seeking or awaiting the results of a COVID-19 diagnosis;
  2. Obtaining a COVID-19 immunization; or
  3. Recovering from any injury, disability, illness, or condition related to a COVID-19 immunization.

FFCRA Paid Leave Amounts Have Been Expanded

Under the FFCRA, qualified employees could receive the following amounts of paid job-protected leave:

  • Paid Sick Leave – up to two weeks (10 days, 80 hours) for qualifying reasons numbered 1 through 6 above, regardless of how long the employee had worked for the employer.
  • Paid Family Leave – up to 12 weeks (60 days, 480 hours), but only for qualifying reason number 5 above and only for employees who had worked at least 30 days for the employer.

Under the ARPA, the paid job-protected leave for qualified employees has been expanded as follows:

  • Paid Sick Leave – the two weeks of Paid Sick Leave has been reset for employees, meaning if an employee already took two weeks of Paid Sick Leave prior to April 1, 2021, the same employee will be eligible for an additional two weeks’ worth of Paid Sick Leave after April 1, 2021 under qualifying reasons numbered 1 through 9 above, and the employer can claim the payroll tax credits again.
  • Paid Family Leave – the qualifying reason for Paid Family Leave has been expanded to include all qualifying reasons numbered 1 through 9 above.

Despite these expansions, employee entitlement to FFCRA leave will be impacted and potentially exhausted based on the total amount of FMLA and/or FFCRA leave the employee has taken over the past 12 months. This means that if an employee has already used 12 weeks of FMLA and/or FFCRA leave within the past 12 months, their entitlement to leave has been exhausted and they must wait until they must wait until they are eligible again to take additional leave.

New Anti-Discrimination Provision Prohibits Employers from Discrimination in Offering FFCRA Leave Based on Salary, Hours, or Tenure

Because the extended FFCRA leave is voluntary, the ARPA implements a new non-discrimination provision that prohibits employers from discriminatorily choosing to offer these benefits only to highly compensated employees, full-time employees, or based on employee tenure. Essentially, if an employer chooses the tax credits, they must offer FFCRA leave equally to all qualifying employees.

What To Do if You Believe Your Rights are Being Violated

If you believe your employer is violating your rights, you may be able to hold them legally accountable. The employment law attorneys of Haeggquist & Eck, LLP will work with you to learn about your situation and seek fair and just compensation if your employer is breaking the law. Contact us online or call (619) 342-8000 to learn more about how we may be able to support your claim.

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