What You Need To Know
COVID-19 Resources & Updates

Optional Extension of Expanded Paid Sick Leave and Family and Medical Leave

April 14, 2021

By: Barry Dorans

At the outset of the pandemic, Congress enacted an expanded family and medical leave program which required employers with less than 500 employees to provide paid expanded FMLA leave and emergency sick leave. That program ended on December 31, 2020. Later, employers were allowed to voluntarily extend the program through March 31, 2021, though the number of days were not reset. In the American Rescue Plan Act of 2021, House Resolution 1319, employers are given an opportunity to extend those benefits as follows.  

  • New Dates. Payroll Tax Credit is allowed for leave between April 1, 2021 and September 30, 2021 under the same limits as before (full pay up to $511 per day for certain reasons, 2/3 pay up to $200 per day for others).
  • Sick Leave. Employees get up to 10 paid sick leaves during the period. Ignore paid sick leave used prior to April 1.
  • Employees get 12 paid weeks of FMLA leave. Not clear if you reset the count as of April 1, or there is a deduction for FMLA already used.  Guidance will probably be issued
  • Additional Grounds. Paid sick leave now includes seeking or awaiting results of a COVID test if employee was exposed to COVID or if the employer is requesting the test, or the employee is obtaining a vaccine or is recovering from a vaccine.
  • No PPP Double Dip. You cannot use PPP loans for the paid leave if you also seek a tax credit. However, you are not required to apply for the tax credit for any leave granted under the extension.
  • Eligibility for credit: Employer must comply with all of the requirements with respect to paid sick leave to obtain the credit. If the Employer discharges, disciplines, or discriminates against an employee who takes leave, that will bar tax credit. Further, the Employer is not allowed to discriminate in favor of highly compensated employees, full time, or on the basis of seniority. It seems to be that the Employer must offer it to all or offer it to none.

Issues to consider:

  1. If you allow the leave, it may certainly improve employee morale especially to the extent they may use it to obtain a vaccine or to get tested due to exposure.
  1. On the other hand, you may be faced with some of the abuse that incurred when the FFCRA first came out and employees were attempting to repeatedly take leave claiming they had been exposed to someone who had COVID. You may also be faced with employees who will want the 12 weeks of leave because their childcare provider is unavailable due to a COVID related reason. It is not clear if you can offer the credit now and change your mind and stop offering at a later date.

You may want to discuss this with you HR coordinator and your counsel.