1. Is COVID-19 sick pay still available to employees?
The Families First Coronavirus Response Act (FFCRA) originally required private employers with fewer than 500 employees to offer COVID-related paid leave to employees. The mandate ended on December 31, 2020. As of January 1, 2021, employers may voluntarily offer COVID- related paid leave and receive a tax credit through September 30, 2021. On April 1, 2021, the government reset the clock on Emergency Paid Sick Leave (EPSL); however, the clock was not reset for Expanded Family and Medical Leave (EFML).
If offered by an employer, employees may take up to ten (10) days of EPSL and an additional twelve (12) weeks of EFML for a combined total of up to fourteen (14) weeks of paid time off. The exact amount of time needed will vary from employee to employee based on their COVID- 19 related circumstances, but it cannot exceed 14 weeks.
2. What does it mean to reset the clock?
Resetting the clock means that any EPSL taken before April 1, 2021, does not count toward EPSL taken between April 1, 2021, and September 30, 2021. Thus, even if an employer previously claimed a tax credit for providing EPSL to an employee before April 1, 2021, the employer may choose to provide up to ten (10) additional days of EPSL to that same employee beginning April 1, 2021.
3. What about EFML, does the clock restart for that as well?
No, employees who took EFML leave before April 1 would have that time counted toward the 12 weeks.
4. May employees use both EPSL and EFMLA for their own health conditions related to COVID-19?
Yes, essentially, an employee may use up to 14 weeks for qualifying reasons related to their own health.
5. What are the qualifying reasons for taking paid leave related to Covid-19?
As of April 1, 2021, the qualified reasons for taking either EPSL or EFML are:
- if an employee is seeking or awaiting the results of a diagnostic test for, or a medical diagnosis of, COVID-19 and after exposure to COVID-19 or test or diagnosis at the employer’s request;
- if an employee is obtaining immunization related to COVID-19; or
- if an employee is recovering from any injury, disability, illness, or condition related to a COVID-19 immunization.
- the employee is subject to a federal, state, or local quarantine or isolation related to COVID-19;
- the employee has been advised by a healthcare provider to self-quarantine;
- the employee is experiencing COVID-19 symptoms and seeking a diagnosis;
- the employee is caring for an individual who is subject to quarantine or is self- quarantining;
- the employee is caring for a child whose school or place of care is closed (or child care provider is unavailable) because of COVID-19; or
- the employee is experiencing any other substantially similar condition specified by the US Secretary of Health and Human Services.
6. Since I decided to offer the paid voluntarily, may I change any of the reasons my employees use the leave, like just covering for a COVID test or seeking medical treatment?
You may not change the qualifying reasons for leave or pick and choose which qualifying reasons are permitted to qualify for the tax credit.
7. May I make changes to the amount of leave offered under EPSL or EFML? For example, I only want to provide two weeks under EFML.
Unfortunately, neither the Department of Labor (DOL) nor the Internal Revenue Service (IRS) has issued any guidance on this issue. Therefore, if you offer qualified leave, the most conservative and safest approach to securing your tax credit would be to provide employees up to the full ten days of EPSL and up to 12 weeks of EFML. Otherwise, the risk would be potentially being disqualified from the tax credit.
8. Am I able to offer one type of leave and not the other? For example, provide EPSL but not offer EFML.
To date, neither the DOL nor IRS has specifically addressed this issue. While the American Rescue Plan language does not prohibit this practice, if you offer qualified leave, the most conservative and safest approach would be to provide both EPSL and EFML. But, again, the risk would be potentially being disqualified from the tax credit.
9. May I just offer EPSL and EFML to my full-time employees and not the part-time ones?
No, employers are prohibited from discriminating in favor of highly compensated employees, full- time employees, or based on employment tenure.
10. What is the amount of the tax credit I may receive for qualified leave wages?
The tax credit
for EPSL is equal to the wages paid for COVID-19 related reasons for up to two weeks (80 hours max), limited to $511 per
day and $5,110 in the aggregate, at 100 percent of the employee’s regular rate of pay if the leave is for the employee’s own health condition. The tax
credit for EFML is equal to wages paid for up to twelve weeks, limited to $200 per day and $12,000 in the aggregate, at 2/3rds the employee’s regular rate of pay.
11. How are employees’ hours determined for purposes of EPSL and EFML?
Full-time employees may receive up to 80 hours of EPSL. Part-time employees may receive the number of hours of EPSL that the employee is normally scheduled to work. If the normal hours scheduled are unknown, or if the part-time employee’s schedule varies, the employer may use a six-month average to calculate the average daily hours. The part-time employee may take EPSL for this number of hours per day for up to two weeks. For EFML, employees may receive up to twelve weeks at their usual number of hours per week.