The American Rescue Plan Act’s Changes to the FFCRA

Business Counselor April 1, 2020 Dominic T. Clolinger

On March 11, 2021, the American Rescue Plan Act (“ARPA”) was signed into law. ARPA has made various alterations to the Families First Coronavirus Response Act (“FFCRA”) which take effect as soon as April 1. This includes changes to both Emergency Paid Sick Leave (“EPSL”) and the Emergency Family and Medical Leave Expansion Act (“Expanded FMLA”). The most notable changes to EPSL are as follows:

It is still entirely voluntary for employers. There is no mandatory federal paid leave in 2021.
ARPA extends the period during which tax credits are available to eligible employers (with fewer than 500 full time employees) that voluntarily provide paid sick and family leave from April 1, 2021 through September 30, 2021.
All employees are given a new “bank” of EPSL hours, meaning that employees who have previously exhausted their two weeks of EPSL have new eligibility for another two weeks of EPSL starting on April 1st. Employees who have not exhausted their first two weeks of EPSL cannot carry it over. Put simply, everyone has two weeks of EPSL eligibility for April 1 – September 30.
Employers can still receive a 100% tax credit for qualified wages paid during leave provided for up to 10 days of paid sick leave, up to $200 or $511 per day, depending on which qualifying reason applies.
The original six qualifying reasons still apply, but ARPA added three new qualifying reasons: (1) obtaining a COVID-19 immunization; (2) recovering from an injury, disability, illness or condition related to the immunization (i.e., side effects of the vaccine) or (3) seeking or awaiting the result of a COVID-19 test or diagnosis when the employee has either been exposed to COVID-19 or the employer has requested the test or diagnosis.
If you choose to voluntarily provide EPSL, you cannot choose which employees you provide it to. If it is offered, it must be offered to all employees and must not be restricted to certain types of employees (for example, it cannot be offered only to full-time employees).

ARPA also made changes to Expanded FMLA leave, which again, is voluntary. Changes to Expanded FMLA include the following:

Employees are now entitled to take up to 12 weeks of paid Expanded FMLA as opposed to 10.
ARPA expands the qualifying reasons for Expanded FMLA to include all the qualifying reasons for EPSL, including those discussed above.

Additional DOL and IRS guidance regarding these changes is expected soon. If you have any questions regarding any of the DOL’s revised regulations or you need assistance responding to requests for leave under the ARPA, contact Nikole Canute, Scott Dwyer, Nate Wolf or Dominic Clolinger for assistance.