Changes to the Families First Coronavirus Relief Act have been made by the American Rescue Plan Act (“ARPA”). The changes become effective April 1, 2021, through September 30, 2021.

Eligible employers are still eligible to receive a 100% tax credit related to the optional paid leave afforded to employees under ARPA. The primary changes in ARPA impact the amount of leave and the reasons the leave can be taken.

In sum, an employee’s eligibility for paid leave related to almost any COVID issue has been expanded to 14 weeks of paid leave. Offering the paid leave continues to be optional. The eligible reasons to take leave are as follows (unless noted otherwise, the employee is eligible for 100% of their pay):

Employee is subject to a government quarantine or isolation order.
Employee is advised to self-quarantine by a health care professional.
Employee is experiencing COVID-19 symptoms and seeking a medical diagnosis.
Employee is caring for an individual who is subject to a government quarantine or isolation order, or is advised to self-quarantine by a health care professional (paid at 2/3 their standard rate of pay).
Employee is caring for a son or daughter whose school or place of care is closed or whose childcare provider is unavailable (paid at 2/3 their standard rate of pay).
Employee is absent from work because the employee is seeking or awaiting the results of a diagnostic test for or a medical diagnosis of COVID-19 provided that the employee has been exposed to COVID-19 or the employer has requested that the employee obtain such a test or diagnosis.
Employee is obtaining an immunization related to COVID-19.
Employee is recovering from an injury, disability, illness, or condition related to an immunization for COVID-19.

The first two weeks is a renewal of the Emergency Paid Sick Leave Act (“EPSLA”), which is 80 hours of paid leave for any of the reasons referenced above. Employees who have already used the 80 hours are now eligible for another 80 hours. Employees who did not use the 80 hours are only eligible for 80 hours.

The Emergency Family Medical Leave Expansion Act (“EFMLEA”) has been modified, as well. Previously, the EFMLEA was limited to caring for a child without daycare due to COVID or a child who was e-learning (reason 5 above). Now, it is expanded to include reasons 1-4 and 6-8. In addition, the first two weeks were previously unpaid (which led to a lot of controversy) and sometimes crossed over with the EPSLA, meaning the first two weeks of the twelve week leave were paid through the EPSLA and the latter ten weeks were paid through the EFMLEA. The entire twelve weeks is now paid through the EFMLEA and is in addition to the EPLSA. In practice, an employee who has not taken any paid leave under the CARES Act is now eligible for fourteen weeks of paid leave for any of the reasons listed above.

However, unlike the EPSLA, the EFMLEA is not renewing as of April 1, 2021. If an employee has already used traditional FMLA or EFMLEA, they are not eligible for an additional 12 weeks, only the additional 80 hours.

An employer can choose to provide paid leave pursuant to the EPSL or EFML, or both, but they must do so uniformly. Specifically, employers are not permitted to offer the leave only to highly compensated employees, full-time employees, or on a seniority basis. The leave must be offered to all employees regardless of their position within the business. Failing to do so will result in a loss of the tax credit.

The Department of Labor is committed to offering more clarity as additional information becomes available. As always, Rothberg will keep you updated.

Rachel J. Guin, Partner｜[email protected]

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Legal Alert: Changes to Families First Coronavirus Relief Act Effective April 1, 2021