Paid Leave and COVID: Answers to 5 Pressing Questions in Employment Law

Image of three people sitting at a conference room table, all wearing masks.

Now that we can begin to see the light at the end of the COVID-19 tunnel, there are many emerging questions related to a new normal in the workplace.

Below we will address a few questions on such topics as Emergency Paid Sick Leave (EPSL) and expanded Family and Medical Leave Act (FMLA) leave under the Family First Coronavirus Response Act (FFCRA), the newly enacted American Rescue Plan Act (ARPA), and the interplay of the Washington’s Paid Family and Medical Leave (PFML) program and the federal FMLA.

Does the employer have to provide COVID-19 related paid leave benefits under the new ARPA?

No. Emergency COVID-19 related paid leave benefits continue to be optional.

ARPA provides that employers with fewer than 500 employees may continue to take advantage of the federal tax credits to cover the cost of FFCRA paid leave benefits (emergency paid sick leave and/or expanded FMLA leave) if the employer chooses to offer these benefits to employees. Employers are not required to offer any FFCRA benefits. Or they may choose to offer one type of benefit but not the other (e.g., the employer may offer emergency paid sick leave but not offer expended FMLA leave). If the employer chooses to offer FFCRA paid leave benefits—either EPSL, EFMLA, or both—the employee must be permitted to use the leave benefit for any of the qualifying reasons.

The federal tax subsidies will be available through Sept. 30 to employers who offer FFCRA paid leave benefits.

Are there new qualifying reasons for FFCRA leave?

Yes. Under ARPA, the qualifying reasons that an employee may take FFCRA paid leave have been expanded from the original six reasons to include the following:

  • An employee may use FFCRA paid leave benefits for time off to obtain the COVID-19 vaccine;
  • An employee may use FFCRA paid leave benefits for time off to recover from side effects, illness, injury, or disability related to the COVID-19 vaccine; and
  • An employee may use FFCRA paid leave benefits for time off for medical evaluation, diagnosis, or testing for COVID-19 when the employee has been exposed to COVID-19 (even if the employee is asymptomatic) or when the employer has requested that the employee get tested for COVID-19.

Also note that while expanded FMLA was previously only available to cover time off needed to care for a child whose school or day care was closed due to COVID-19, as of April 1 ARPA has expanded the qualifying reasons for EMFLA, and EFMLA may now be used for all the same qualifying reasons as emergency paid sick leave (EPSL). So if the employer chooses to offer EFMLA to employees after April 1, the range of uses for that leave has been greatly expanded.

Did the pay caps and maximum benefit levels change under the recent extension of FFCRA benefits?

No. the pay caps and maximum benefits levels didn’t change. If you are an employer who chooses to extend EFMLA benefits to employees after April 1; however, read on!

The tax credit available for EPSL related to an individual’s own health condition (qualifying reasons 1 through 3, including the expanded vaccine-related needs) remains equal to the employee’s regular rate of pay, up to a maximum of $511 per day. The tax credit for other EPSL qualifying needs (reasons 4 through 6) remains capped at two-thirds the regular rate of pay, up to $200 per day.

The ARPA now provides tax credits for up to 12 weeks of partially paid EFMLA leave for all six qualifying reasons (whereas EFMLA had previously only been available for leave due to school or daycare closures). ARPA eliminates the initial two-week period of unpaid EFMLA leave (so all 12 weeks are now paid), but keeps the maximum tax credit at two-thirds the employee’s regular rate of pay – regardless of qualifying condition – up to a maximum of $200 per day. The maximum tax credits available to the employer under these ARPA changes has increased from $10,000 to $12,000.

Is it true that employees get a new bucket of EPSL leave as of April 1 and a new bucket of EFMLA?

Under ARPA, starting April 1, an employer may allow employees to take up to 80 hours of EPSL paid leave (this is a “new bucket” or allotment of emergency paid sick leave, regardless of how much or how little of EPSL leave the employee may have used prior to April 1), and the employer may take federal tax credits to cover the cost of that leave.

Any EPSL leave that employees had remaining as of March 31 did not carry over to April 1. So in no case would an employee have more than 80 hours of emergency paid sick leave available to them under the new plan starting April 1. Because the leave is optional, an employer may choose to offer fewer than 80 hours of EPSL, but the employer should be consistent in how it determines how much leave an employee may have available. For example, instead of offering 80 hours of EPSL to full-time employees, the employer may decide to offer 40 hours of paid leave to full-time employees and a prorated amount of leave to part-time employees, consistent with the number of hours they work per week.

Unfortunately, Congress did not address whether employees are entitled to a “new bucket” of EFMLA leave, and that question remains unanswered. Remember, however, an employer is not obligated to offer FFCRA paid leave benefits at this time. Because of the uncertainty surrounding EFMLA, some employers are opting to offer EPSL but not EFMLA going forward.

If an employee used 80 hours of EPSL in 2020 and became infected with COVID-19 in 2021, does the employee have any additional leave available?

Possibly, yes. As discussed above, an employer with fewer than 500 employees (and therefore covered by the FFCRA and ARPA) has the option of extending emergency paid leave benefits to employees and taking federal tax credits to cover the cost of that leave. ARPA allows the covered employer to provide up to an additional 80 hours of EPSL to an employee through Sept. 30 for a covered reason (including COVID-19 illness and related issues).