With over 100 million vaccinations distributed throughout the US and a goal for all adults to be eligible by May 1, 2021, companies are now focused on requirements and considerations as they look to reopen their facilities and welcome employees back to the office. The challenges are broad, leaving employers with many questions especially pertaining to modifications to leave obligations.

To help employers navigate these requirements, ABD recently hosted Angela Hayes, an employment law expert from our partner Associated Industries, for an informative webinar breaking down the basics of Family First Coronavirus Relief Act (FFCRA). Listen in to hear what remains the same and what is changing as we approach a year under the provisions of the Family First Coronavirus Relief Act (FFCRA): Employer Leave Obligations Related to COVID-19 Webinar Replay.

Below are frequently asked questions as well as recommended resources.

Q: Are the tax credits only available to employers under 500 employees?

A: Yes. The federal tax credits available to cover the cost of optional leave under FFCRA [emergency paid sick leave (EPSL) and expanded Family and Medical Leave (EFML)] are only available to employers with fewer than 500 employees. There are no similar federal leave programs for employers over 500 employees. However, there may be state leave provisions that apply to large employers.

Q: How do I calculate the number of employees for purposes of FFCRA?

A: You have fewer than 500 employees if, at the time your employee’s leave is to be taken, you employ fewer than 500 full-time and part-time employees within the United States, which includes any State of the United States, the District of Columbia, or any Territory or possession of the United States.

The calculation includes full and part time employees, employees on leave, employees who are jointly employed by you and another employer, and day-laborers supplied by a temporary agency.

The full explanation can be found at the Department of Labor site regrading FFCRA leave. (See FAQ #2)

A: Yes, the paid leave programs established under the FFCRA (emergency paid sick leave and expanded FMLA) may now both/each be used for any of the 6 qualifying reasons discussed in the presentation. In addition, “qualifying reason #3” was expanded under the American Rescue Plan Act (ARPA) so that federal tax credits can be used to cover paid leave needed for time off to get vaccinated or to recover from any illness, injury, or side effect from the COVID-19 vaccine.

Q: Does ARPA apply to all employers, not just those with populations over 500? What’s the difference between ARPA and the FFCRA?

A: The provisions of the American Rescue Plan Act (ARPA) that pertain to paid leave still only apply to employers with fewer than 500 employees.

ARPA “builds on” the FFCRA legislation that was passed last year by expanding the qualifying reasons that an employee may take EFMLA – previously, under FFCRA, the only qualifying reason for EMFLA was to care for a child whose school or daycare was closed due to COVID-19. Now under ARPA, EFMLA may be used for any of the 6 qualifying reasons. ARPA also expands the availability of paid leave under either program (EPSL and/or EFMLA) to cover time off for vaccinations and recovery time from any side effects.

Finally, the ARPA extends the availability of federal tax credits to cover the cost of leave through September 30, 2021. Remember, however, the paid leave provisions under the FFCRA and as expanded by ARPA, are still optional for the employer. Employers are not required to continue providing paid leave under either of these programs but if the employer chooses to do so, the employer (with fewer than 500 employees) will be eligible to take the federal tax credits.

Q: The amount of available leave for EPSL resets on April 1, 2021. Employees will have a ‘new bucket” of up to 80 hours to use for the 6 qualifying reasons discussed in the webinar program (prorated for employees who work less than full time). Will the employer be able to utilize the tax credit for the new 80 hours of leave?

A: Yes. Under ARPA, employers will be able to use federal tax credits to cover the cost of EPSL (including the new bucket of leave).

Q: Does the “regular rate of pay” for purposes of paid leave under FFRCA include tips?

The DOL website states the following regarding “regular rate of pay” for paid leave:

For purposes of the FFCRA, the regular rate of pay used to calculate your paid leave is the average of your regular rate over a period of up to six months prior to the date on which you take leave.[2] If you have not worked for your current employer for six months, the regular rate used to calculate your paid leave is the average of your regular rate of pay for each week you have worked for your current employer.

If you are paid with commissions, tips, or piece rates, these amounts will be incorporated into the above calculation to the same extent they are included in the calculation of the regular rate under the FLSA.

You can also compute this amount for each employee by adding all compensation that is part of the regular rate over the above period and divide that sum by all hours actually worked in the same period.

Additional information can be found on the DOL website. (FAQ #8)

A: Yes, and you should. If the employer is going to take the federal tax credits to cover the cost of paid leave under FFCRA, the employer must maintain the following documentation to substantiate the tax credit: (FAQ #15)

Also see this link for the information that is required by the IRS for the federal tax credits. (FAQ #44)

A: If you are an employer with 50 or more employees that is already subject to the Family Medical Leave Act, then any emergency FMLA leave that you extend to an eligible employee will count against the employee’s “regular” FMLA leave bank.

A: It is unclear whether the EFMLA “leave bucket” resets to 12 weeks as of April 1. Some legal authorities have opined that the EFMLA leave bucket does, in fact, reset, but no governmental authority has confirmed this, and it is not directly addressed by the American Rescue Plan Act (ARPA).

Remember, though, both EFMLA and EPSL are optional, so an employer may choose to offer one type of FFCRA leave and not the other (or no FFCRA leave, or both!)

Q: For a small agency with generous sick leave benefits, and staff have sufficient leave and get Covid or have family with Covid that need care, does the employer have to provide emergency leave?

A: No. FFCRA is no longer mandatory (as it was back in 2020). Employers (with fewer than 500 employees) who choose to offer one or both types of FFCRA leave may continue to claim the federal tax credits to cover the cost of leave through September 20, 2021.

With over 100 million vaccinations distributed throughout the US and a goal for all adults to be eligible by May 1st, 2021, companies are now focused on requirements and considerations as they look to reopen their facilities and welcome employees back to the office. The challenges are broad, leaving employers with many questions especially pertaining […]

Employer Leave Obligations Related to COVID-19: Frequently Asked Questions and Resources

COVID-19 has prevented most employers from opening their workplaces for a year, but that is changing. The availability of several vaccines against the virus – although still in limited global supply – along with masking and social distancing precautions have begun to reduce the number of new cases reported each week.

But the pandemic is not over yet, and so-called “herd immunity” that will come from widespread vaccination could take months. So, employers who are considering reopening later this year should be aware of how the virus can spread – and how rapidly.

ABD recently held a webinar with two experts on the COVID-19 virus from our partner, Cigna. They made it clear that while the cases and deaths from the virus known as SARS-CoV-2 are decreasing compared to that observed during the fourth surge this winter, the virus remains extremely contagious.

In fact, it is has been so widespread and produced such a large number of unexpected deaths (500,000 as of the webinar date) that for the first time since the end of WWII, “the CDC recently reported that life expectancy in the United States dropped by one whole year as a result of the pressure of the pandemic,” said Ken Phenow, MD, MPH, a family medicine physician who serves as medical executive for Cigna. It was an unprecedented decrease in life expectancy that is likely to continue downward as data from the end of 2020 is analyzed a year from now.

While the drop in overall cases is “very encouraging,” he said, that doesn’t mean the virus is less infectious. In fact, it’s three times as infectious as the flu – so a single infected person can potentially spread the virus to three others. That creates an “exponential situation of exposure” that can get out of control.

Another critical characteristic of this virus that makes it dangerous, Dr. Phenow noted, is asymptomatic transmission. In other words, an individual can be infected by the virus, have no symptoms and never know that they are infected and easily spread the virus to others around them if they are not practicing good public health measures or those around them are also not protecting themselves.

The virus can also be spread by pre-symptomatic individuals that have the infection and can transmit the virus even before displaying minimal symptoms.

The virus can spread in a number of ways. The two most common are through direct exposure to respiratory droplets – if an infected person talks or sneezes in close proximity (usually 6 feet or less) to someone else – and by walking through a “contrail” of dried droplets from an infected person that remain suspended in the air for some time after they pass. Those conditions are common in most workplaces, and preventing that transmission is why “it’s so important to wear masks, to protect yourself and others around you.” Dr. Phenow said.

Another reason masks are crucial is that it can take up to two weeks for a newly infected person to show symptoms of COVID-19, versus a couple of days for the flu. During that incubation period, the virus can be spread to others without anyone realizing it – so people coming to work who feel normal could carry the virus and infect colleagues.

Even though 80% of people who become infected will experience only mild symptoms or no symptoms at all, about 14% will develop serious symptoms that might require hospitalization, he noted – and 5% will wind up in ICUs with severe breathing problems, as well as impact on the lungs, heart, kidneys and liver, which can be fatal. While older people – age 65 and beyond – are the most likely to have serious symptoms, the COVID-19 has claimed the lives of many younger people as well. And individuals with multiple chronic conditions like diabetes, high blood pressure and heart problems along with obese individuals and those with compromised immune systems due to cancer or other autoimmune disease are also at higher risk for infection and serious complications.

Vaccines Effective but Encouragement to Get Them is Needed

The most potent weapon in the fight against the virus are the vaccines that have become available since late last year. More new vaccines are coming online, and manufacturers who are normally competitors are cooperating to increase production of the vaccines. So far, they are proving to be effective, said Ellen Ray, a Clinical Pharmacist for Cigna.

What concerns her most are the many myths about the vaccines that could dissuade people from getting a shot – especially the fact that they were developed so quickly, in just months rather than years. That has some people convinced that researchers cut corners along the way, something Ray doesn’t believe.

“If you think about the fact that there were billions of dollars from all different sources, given to these companies,” she said, “and they had probably more scientists working on this project than any other project, ever” and much of the ‘technology’ to develop the vaccines was already discovered and available, then meeting the short timeframe while following all the precautions “is pretty reasonable.”

While it may take many more months or even years to gather complete data about any long-term concerns of the vaccines, the side effects so far have been minimal and normal, she said.

The other important concern is that the two most widely used vaccines in the U.S. to date – from Pfizer and Moderna – require two doses given a few weeks apart, rather than the single shot most people get for the flu.

“You need to keep people going to get that second shot, because there’s people that don’t want the vaccine,” she said, when they find out the short-term reaction to the second shot is often worse than the first. “So, they need to keep people motivated and keep them going, and to make sure that that a full, full level of protection without stopping, and then getting the second dose six months later.”

Another concerning area that Dr. Phenow discussed is the emergence of several virus variants of concern (VOC). These VOCs are mutations of the virus that are poised to become more prominent in the US in the future and are concerning because research has shown that they are more infectious and in some cases more lethal. The most concerning of these is the so-called UK variant (B.1.117) that significantly impacted the UK over the winter and is now spreading through Europe and is expected to be the dominant strain of the virus in the US by April. “To avoid these variants from spreading and causing a fourth surge of cases and death in the US like that seen in the winter, experts are recommending getting vaccinated as soon as you are eligible and the best vaccine is the one available once you are eligible to receive it. It is a race between variants and vaccine,” Dr. Phenow commented. “The only way we will get back to some level of normalcy is to get everyone vaccinated and continue to practice good public health measures like masking, physical distancing and avoiding crowded indoor environments until we reach herd immunity.”

Two other consequences of the virus that Dr. Phenow believed were important for employers to understand were discussed as well. These included the behavioral health epidemic within the pandemic and “long COVID”. The pandemic has been marked by significant increases in the number of Americans (about 50% or more; particularly younger generations) suffering from high levels of stress due to uncertainty about their future and impact of the pandemic on their financial, social and personal lives that are now leading to behavioral health issues such as depression, anxiety and burnout.

Data on the other consequence, the so-called “long COVID” or long haulers syndrome, Dr. Phenow noted was being reported by researchers from around the world, where individuals who were diagnosed with varying severity of COVID illness from asymptomatic to ICU hospitalizations are now reporting multiple COVID symptoms long after they had cleared the virus and tested negative. Many of the “long haul” symptoms are different that those that the affected individual experienced with acute COVID and some of the symptoms are quite debilitating. These include most commonly, persistent severe fatigue, headaches, and “brain fog” (mild subjective cognitive impairment) among other symptoms that appear 4 or more weeks after the acute illness and can significantly impact previously healthy individuals. The NIH has a new name for this condition that may affect up to 30% or more of COVID survivors, some leading to disability; it is being called “Post COVID Sequelae of SARS Cov2” or (PASC). Over a billion dollars in NIH research funds has been made available to researchers to better understand the cause of PASC, and how to better diagnose and treat it in the future. In response to this concerning medical issue, multi-disciplinary post COVID clinics are springing up around the country to help individuals with PASC; he noted that two of these clinics are here in Northern California at UCSF and UC Davis.

To learn more, we invite you to listen to a recording of the webinar at ABD’s website, check out additional COVID-19 related insights, or to contact your ABD consultant.

COVID-19 has prevented most employers from opening their workplaces for a year, but that is changing. The availability of several vaccines against the virus – although still in limited global supply – along with masking and social distancing precautions have begun to reduce the number of new cases reported each week. But the pandemic is […]

COVID-19: Still Dangerous Despite Vaccines, Experts Advise Awareness and Vaccinations to Protect Employees

Many American employers are hoping to re-open their workplaces now that COVID-19 vaccines have become more available across the U.S. As they consider whether or not to require their employees to get the vaccine before returning to work, there are a host of potential legal risks that need to be addressed. They can range from potential violations of the Americans with Disabilities Act (ADA) to guarding against workplace discrimination in the treatment of non-vaccinated employees.

To help employers understand these complex risks and shifting rules, Newfront recently sponsored a webinar that included partners from Cigna discussing the vaccine and two employment law experts from its partner Associated Industries. During the second half of the webinar, legal experts discussed what’s involved in requiring vaccinations by returning workers, the important exemptions to that requirement, and the steps companies should take to prevent exposure.

Under normal circumstances, federal law says employers aren’t allowed to conduct medical examinations of their employees or ask them about medical matters, unless it’s directly job-related. But the EEOC considers COVID-19 to be a “direct threat” – which means it poses “a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by a reasonable accommodation,” said panelist Jennifer Hanson, who is Legal Counsel for Associated Industries.

That designation gives a company more leeway when it comes to vaccinations. The EEOC has said a company may require its employees to get COVID-19 vaccinations before coming back to work. The federal agency has also said employers may even ask employees to provide proof they’ve been vaccinated.

It doesn’t give employers a blank check, however.

Some states may forbid either or both requirements – and numerous laws have been proposed that strengthen these prohibitions. In addition, there are important federal exemptions that can put employers at risk if they aren’t recognized. The Americans with Disabilities Act (ADA) provides an exemption for people who have a medical condition or a disability that prevents them from receiving vaccination. Title Seven of the Civil Rights Act provides a similar exemption for people with a sincerely held religious belief that prevents them from receiving a vaccination.

In general, employers need to allow employees to self-attest that they are entitled to either exemption. And if an employee says they don’t intend to be vaccinated and won’t provide proof, employers also need to be careful not to ask “why not” in a way that would potentially be a medical inquiry that’s not allowed, Hanson said.

If the company keeps some proof of vaccination on file, they now have a record that’s protected under the ADA and medical privacy laws and needs to be stored securely and separate from the rest of an employee’s personnel file.

In the case of employees who claim an ADA or religious exemption, an employer can’t use that as a reason for termination or other punitive measures. In fact, the employer has an obligation to provide an accommodation for both types of employees that allows them to continue doing their job.

“There are lots of different types of accommodations that can work, depending on your type industry,” Hanson said. “The employee could continue to wear a mask, depending on what your local laws are with respect to mask wearing. Or the employee, perhaps, could work in an area that’s less populated, and so they’re not coming into contact with other individuals.” For workers where an onsite accommodation isn’t possible, then remote working is another possible solution.

The exception to this is when doing so would result in an undue hardship to the company. The definition, however, is very different depending on the governing law. For ADA exemptions, the undue hardship bar is quite high for the company; it can’t simply involve cost. The change would have to be considered substantial or disruptive to the business, or would somehow change the fundamental nature of the business. For religious exemptions, the rules are somewhat more lenient.

The pandemic has been stressful for employees for the past year. When employees respond to increased workplace stress with racial or other discriminatory animus against co-workers, that behavior can create a hostile work environment that negatively impacts the work environment and poses a legal risk for the employer.

The virus’ origins in China have resulted in a significant backlash toward Asian Americans in the workplace, said panelist Angela Hayes, Senior Legal Counsel, Associated Industries. There’s also potential that accommodations provided to employees who cannot be vaccinated due to a religious or medical disability exemption may lead other employees to behave in ways that constitute discrimination. It falls on the employer to prevent or remedy a hostile workplace environment if these situations occur, so this is an ideal time for the employer to review and revise if necessary, its Unlawful Discrimination and Harassment policy and provide training to supervisors, managers, and employees.

Employers may also face legal risks if they offer incentives to employees to get vaccinated. If the vaccine is offered through an employer wellness program, participation must be “voluntary” and per EEOC rules, incentives to participate in a wellness program can only be “de minimus,” such as a water bottle or small gift card of nominal value. More generous incentives for participation in a wellness program, such as high-dollar cash awards or extra hours of PTO, may violate EEOC rules because those incentives appear to be coercive. On the other hand, generous incentives provided to employees who are vaccinated by their own health care provider or a pharmacy may not violate EEOC rules for wellness program incentives, but may give rise to ADA discrimination claims by employees who cannot be vaccinated due to a medical exemption or religious objection, since those employees would not be able to access that incentive offered solely for vaccination.

Another potential area of liability for employers arises when an employee has an adverse reaction to a COVID-19 vaccination. Depending on whether the employer required employees to get the vaccine, there could be potential for a worker’s compensation claim, Hayes said.

This remains a complex area involving federal law, EEOC regulations, and a patchwork of state and local laws. The law continues to develop, and employers should keep in close consultation with their employment counsel and benefits partners to ensure their policies are aligned with any changes.

Many American employers are hoping to re-open their workplaces now that COVID-19 vaccines have become more available across the U.S. As they consider whether or not to require their employees to get the vaccine before returning to work, there are a host of potential legal risks that need to be addressed.

How to Handle COVID-19 Vaccinations: Legal Experts Note Considerations and Risks for Employers

The Earth may be round, but our world is flat, and it’s getting flatter—and more fragile—all the time. That’s what Thomas Friedman, award-winning foreign affairs columnist for The New York Times and bestselling author of The World is Flat, wants us all to keep in mind come November.

Mr. Friedman recently joined ABD for a client-exclusive webinar to discuss his views on the troubling  of the United States and what needs to happen to get the country, even the world, back in good physical, political, and economic health. His opinions are his own, formed over decades of direct reporting and sophisticated analysis of some of the most complex issues facing the world. He’s known for making people see things in new ways. In one hour, he certainly gave me a lot to think about – from the current pandemic and politics to globalization and global warming… although, now those topics seem more interrelated to me than ever before.

I encourage you to listen to the replay and do your own thinking and analysis. We need to find balance in this world, sooner rather than later. We’ve got big, hard problems to solve, sooner rather than later. How can you help, sooner rather than later? Mr. Friedman gives us food for thought…

For Mr. Friedman, the 21st century so far has been one “pandemic” after another: terrorist attacks, financial crises, environmental disasters. As a reporter, he’s covered them all. The latest, COVID-19, is one of Mother Nature’s fastballs. Like previous pandemics, the warnings signs were there, and we still couldn’t manage to avoid it. Now that it’s here, we must adapt.

In Mr. Friedman’s hindsight, we were not humble or respectful of this virus. We were not coordinated in our response to it, and we did not build an adaptation strategy—one that balances lives and livelihoods—based on science. The next POTUS needs to learn from these mistakes and lead change on a global scale that better prepares us for the next big, hard fastball from Mother Nature. She’s merciless, and (sing it with me), “She’s got the whooole wooorld in her hands”. I, for one, do not want her to drop it like a hot potato. Do you?

When asked if the world is getting flatter, in reference to his bestselling 2007 novel about the opportunities and drawbacks of globalization, Mr. Friedman steered the conversation toward a different f-word: fragile. Yes, the world is getting flatter (more connected) all the time, but that’s also causing it to become more fragile. Technology has enabled so many good things to come about in this world: communication, travel, efficiency, productivity. But it has also paved—or greased, as Mr. Friedman put it—the way for a whole host of big, hard problems that aren’t easy to solve. All those pandemics I mentioned before? All that grease adds fuel to the fire. Climate change? Social injustice? Political polarization? Technology is powerful. Will you use it to be part of the solution, or part of the problem? How will the next POTUS use it?

Speaking of political polarization, Mr. Friedman feels this is the big, hard problem that needs to be solved now, first. We need to find a way to come together as a nation, so we can all work better together to solve the bigger, harder problems, that much faster. Two heads are better than one, as my mother used to say. Our next POTUS will only succeed by unifying us as a county, not dividing us—and by instilling truth and trust in the world, so we, as citizens, can make educated choices, not just on November 3rd but every day, that actually make a difference in the world.

In a democracy, a vote is the most important and impactful choice we can make. The world is fragile. Mr. Friedman’s ask of us? ‘Vote on November 3. Vote like your future physical, political, and economic health depends on it… because it does.’

The Earth may be round, but our world is flat, and it’s getting flatter—and more fragile—all the time. That’s what Thomas Friedman, award-winning foreign affairs columnist for The New York Times and bestselling author of The World is Flat, wants us all to keep in mind come November. Mr. Friedman recently joined ABD for a […]

Thomas Friedman and Respecting the Power of a Connected World

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Employer Leave Obligations Related to COVID-19: Frequently Asked Questions and Resources

COVID-19: Still Dangerous Despite Vaccines, Experts Advise Awareness and Vaccinations to Protect Employees

How to Handle COVID-19 Vaccinations: Legal Experts Note Considerations and Risks for Employers

Thomas Friedman and Respecting the Power of a Connected World

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COVID-19: Still Dangerous Despite Vaccines, Experts Advise Awareness and Vaccinations to Protect Employees

How to Handle COVID-19 Vaccinations: Legal Experts Note Considerations and Risks for Employers

Thomas Friedman and Respecting the Power of a Connected World

Newfront for Businesses

Newfront for Employee Benefits

Newfront for Private Clients

Blog ‍

Connect ‍
with ‍
us. ‍

Employer Leave Obligations Related to COVID-19: Frequently Asked Questions and Resources