As companies of all types and sizes continue to deal with the potential legal implications of the COVID-19 pandemic for their businesses, Jackson Walker provides insights and resources on the COVID-19 Legal Resources & Insights site.
Labor & Employment attorney Brooke Willard returns to give an update on the changes in paid sick leave. The American Rescue Plan Act of 2021 (ARPA) extended employee paid sick leave due to COVID-related reasons through September 30, 2021. In addition, ARPA created three new qualifying reasons for when an employee can take this kind of leave:
- The employee is getting the COVID-19 vaccine.
- The employee is recovering from an injury, disability, or illness related to a COVID-19 vaccine.
- The employee is waiting on the results of a COVID-19 test or at the employer’s request.
The good news is that employers may claim a tax credit for providing up to 10 days of paid sick leave to individual employees, or up to 12 weeks of paid family leave, subject to the new non-discriminatory rules put in place by ARPA.
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Greg Lambert: Hi, everyone. I’m Greg Lambert, and this is Jackson Walker Fast Takes. With all the movement lately with the COVID-related paid sick leave, I asked Brooke Willard to come back onto the show and give us an update.
Brooke, welcome back.
Brooke Willard: Thanks for having me.
Greg Lambert: So, I know it’s only been about a week since we talked last, but I know there’s a lot going on. Can you tell us what’s new?
Brooke Willard: Yes. I figured it’s 2021, we all need some good news. Believe it or not, the news regarding COVID-related paid sick leave is good for both employers and employees. Employers now have the choice to provide COVID-related paid sick leave to employees now through September 30 of this year.
A little bit of background to this is that Congress enacted the Families First Coronavirus Response Act this time last year – last March. This law required employers with less than 500 employees to provide employees with short-term paid sick leave for various reasons related to COVID-19 — say if someone had COVID-19, or if a child’s daycare or school was closed due to COVID. The good news is that employers are not footing the bill here. Businesses can receive tax credit reimbursements for FFCRA payroll.
Greg Lambert: Well, that’s good. So, employees get paid sick leave that they need and the employers aren’t stuck with the bill, right?
Brooke Willard: Exactly. This mandatory FFCRA paid sick leave expired at the end of 2020. Then after that point, starting this year, January 1, Congress provided employers with the choice of providing this paid sick leave until March 31, 2021.
Greg Lambert: Since we’re up on that point right now, what do we do after March 31?
Brooke Willard: The timeline was extended again to September 30, 2021. With the recent passage of the American Rescue Plan Act of 2021, employers who want to provide this FFCRA paid leave can do so now through September 30. As we know, COVID cases are still high and this just provides a mechanism to help out employees in this way, if the employer chooses to do so.
The American Rescue Plan Act didn’t just extend the timeline, they also created three new qualifying reasons under which an employee could get this kind of paid sick leave. Now, prior to April 1st, employees could claim this paid sick leave if the employee has COVID-19, has been told by a doctor to quarantine, if an employee is experiencing symptoms and is getting a medical diagnosis, if the employee has to take care of their child whose school is closed due to COVID, or if the employee is the caretaker of someone in the household who’s subject to quarantine. So, those were the existing reasons. But the American Rescue Plan Act added three reasons related—some of which are related—to vaccinations.
Greg Lambert: Well, that makes sense because we all know people, especially after having the second shot, are getting sick after the COVID vaccine.
Brooke Willard: Exactly. So, an employee can qualify for paid sick leave in addition to those reasons I just mentioned. First, if you’re getting a COVID-19 vaccine, you can get paid sick leave for that day if you have to take the day off to go get the vaccine. Secondly, if you’re recovering from an injury, disability, or illness related to the COVID-19 vaccine, you can get paid sick leave for that reason as well. And the third one is a little different – if you as an employer are exposed to COVID-19 and you’re waiting for the results of that COVID test, or the employer is asking you to get that test, you can also qualify for this type of paid sick leave.
Greg Lambert: What about employees who may have already used up all of his or her COVID paid sick leave?
Brooke Willard: Well, that’s more good news. Actually the bank of allowed paid sick leave days starts over on April 1st. Say prior to April 1st an employee maxed out his FFCRA paid sick leave allowance due to him, say, contracting COVID-19. Starting April 1, the employer can choose to provide once again up to 10 days of paid sick leave to that same employee. Employers can also claim a tax credit for providing up to 12 weeks of paid family leave.
Greg Lambert: Is there anything else that we need to know about this paid sick leave other than the extension and the three new qualifying reasons?
Brooke Willard: Yes, one more thing: Employers need to be aware of the new nondiscrimination rules related to this. Essentially, employers need to make sure they’re not giving this FFCRA paid sick leave to employees based on the fact that they are highly compensated or that they’re full time or based on seniority. So, if employers choose to cherry pick in this way of who to give COVID paid sick leave to, then they’re not going to qualify for those tax credits. In other words, employers will have to cover the costs themselves if they choose to do this. Employers have plenty of options here as to whether or not to provide this paid sick leave. They just need to make sure to do so in a nondiscriminatory manner.
Greg Lambert: Well, Brooke Willard, thanks again for coming back on and catching us up on these changes in paid sick leave.
Brooke Willard: No problem. Thank you.
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The music is by Eve Searls.
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Please note: This article and any resources presented on the JW Coronavirus Insights & Resources site are for informational purposes only, do not constitute legal or medical advice, and are not a substitute for legal advice from qualified counsel. The laws of other states and nations may be entirely different from what is described. Your use of these materials does not create an attorney-client relationship between you and Jackson Walker. The facts and results of each case will vary, and no particular result can be guaranteed.