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)

Q:

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)

Q:

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.

Q:

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.

Recommended Resources

• Department of Labor website

• EEOC Guidance(Section K)

• Job Accommodation Network