This spring, we have seen both federal and state legislation expanding COVID-related leave laws. In this newsletter, we highlight some of the most important changes.

ARPA EXTENDS COVID EMERGENCY PAID SICK & FAMILY LEAVE

The American Rescue Plan Act of 2021 extended FFCRA tax credits for employers with fewer than 500 employees who voluntarily provide COVID-related sick leave or family leave. The tax credits were set to expire on March 31, 2021 and will now be available until September 30, 2021.

COVID emergency paid leave under ARPA is voluntary for employers. However, we recommend that employers offer this leave – which is reimbursed to you through tax credits and helps keep your workforce safe and healthy. Employers should also note that if they offer leave to some employees, they must offer it to all employees. You cannot selectively offer this leave based on seniority, salaried/hourly, or any other basis.

Emergency paid sick leave can be used for COVID-related quarantines, COVID illnesses, and school closures, as well as two new reasons: (1) awaiting test results following a known exposure and (2) time off to receive a vaccine or recover from side effects. Vaccine sick leave can include time off work for employees to get a vaccine, or sick leave if employees need time to recover from vaccine side effects. This is a win-win for employers: employers can incentivize employees to get the vaccine by offering vaccine sick leave, and the federal government will reimburse them for the leave.

Even if employees already took emergency paid sick leave under FFCRA, APRA provides 80 additional hours of leave that can be used from April 1, 2021 – September 30, 2021. Sick leave is paid at an employee’s regular wages, up to a maximum of $511 per day.

ARPA also extended Expanded FMLA (“EFMLA”) leave. Employees can use EFMLA for the same reasons above, including COVID-related illnesses, quarantines, vaccine-related absences, and to care for children whose school or daycare is closed for COVID-related reasons. This is an expansion from FFCRA, which only allowed employees to use Expanded FMLA for school/daycare closures.

Employees are eligible for up to 12 weeks of EFMLA (plus two additional weeks of sick leave, for a total of 14 weeks). If an employee already took EFMLA during 2020, they will not be eligible for additional EFMLA until they have entered a new FMLA year. EFMLA is paid at 2/3 of an employee’s regular wages, up to $200 per day.

ARPA COBRA SUBSIDY

APRA also requires employers to cover 100% of an employee’s COBRA premiums for six months if they were laid off, terminated, or subject to a reduction in hours. The federal government will reimburse these premiums with a dollar-for-dollar tax credit. The subsidy window is April 1, 2021 until September 30, 2021, and applies to any employees on COBRA during this window. This includes former employees who were terminated any time after November 1, 2019. However, the COBRA subsidy does not extend the eligibility period beyond 18 months. If a former employee’s COBRA benefits are due to expire prior to September 30, 2021, they will still expire on that date and will not be extended, and the subsidy will only apply from April 1, 2021 until that date.

If a former employee already elected COBRA, they do not need to reenroll to be covered by the subsidy. For former employees who either did not elect COBRA or let it lapse, there is a special enrollment period to elect COBRA and receive the subsidy going forward.

Employers must provide notice to eligible individuals about the subsidy and the special enrollment period. The required notice is available at https://www.dol.gov/agencies/ebsa/laws-and-regulations/laws/cobra/premium-subsidy. This will typically be sent by an employer’s third party provider.

STATE-MANDATED COVID LEAVE

In addition to federal paid leave, several states have adopted their own COVID sick leave laws:

California

In March 2021, California enacted a new law that requires employers with 26 or more employees to provide supplemental paid sick leave for COVID-related absences in addition to their regular paid time off benefits. In addition to sick time for COVID infections, employees can use COVID leave for quarantines, vaccines, and school closures. The law also has a poster requirement (available at https://www.dir.ca.gov/dlse/2021-COVID-19-Supplemental-Paid-Sick-Leave.pdf) which can be emailed to employees if your workforce is remote.

The law applies retroactively to January 1, 2021, and employers may have to true-up employees who already took sick leave for COVID-related purposes earlier in the year. If you have an employee in this situation, please contact us and we can help you with the intricacies of the California law.

New York

Since March 2020, New York has required employers to provide quarantine leave to employees who are subject to a COVID quarantine order. The leave can be unpaid for employers with fewer than 10 employees and must be paid leave for larger employers (5 days paid for employers with 11-99 employees; 14 days paid leave for employers with 100 or more employees).

This paid leave requirement remains in effect. However, the New York Department of Labor has clarified that employees can use paid sick leave benefits no more than three times, and the second and third orders must be based on confirmed COVID-19 exposure.

VACCINES

State Vaccine Leave Laws

In addition to ARPA sick leave for vaccination, employers should allow employees to use their paid time off to get vaccinations and recover from side effects. In states with mandatory sick leave laws (including Massachusetts), employers must allow their employees to use sick leave to get the vaccine or recover from side effects.

New York has gone a step further and requires employers to provide an additional 4 hours of sick leave per COVID-19 vaccine injection, in addition to an employee’s regular sick leave allotment.

California employees can use COVID-19 supplemental sick leave for vaccine-related purposes.

RETURNING TO THE OFFICE

We have been fielding many questions from clients on how and when to reopen the office or require employees to come back to in-person work. There are several factors to consider when structuring a reopening:

1.   What does your state permit?

Even with vaccinations ramping up, many states (including Massachusetts) still have capacity restrictions, social distancing rules, indoor masking requirements, and sector specific protocols in place. You should continue to follow these rules until they are lifted.

2.   Balancing business needs with employee needs.

The past year has been difficult on everyone, and employees may have very different opinions on returning to the office. If your business needs staff to be in person, you can require employees to come back to the workplace (consistent with your state’s requirements). However, if your business has flexibility to continue allowing remote work, you should consider your company culture and the needs of your employees when structuring a return-to-work plan. These are a few options to consider:

a.   Survey your workforce to see what employees think. Some employees may be eager to return to the office, and others may be more reluctant.  You can use employee input to guide your reopening strategy.

b.   Hybrid or staggered remote/in-person schedules: You can allow employees to work remotely on certain days and come into the office on other days.

c.   Childcare considerations. Many schools and childcare providers are still operating on limited hours.  Employees may need flexible schedules or the ability to work remotely for part of the day.  Talk to your employees to see what type of arrangement would work best for everyone.

No matter how you approach reopening, you should give employees ample notice and time to prepare.

3.   Can you require the vaccine?

We are hearing this question from many clients as the vaccine becomes widely available to all adults. The EEOC has opined that employers can mandate the vaccine. However, currently all available vaccines are operating under FDA Emergency Use Authorization (“EUA”), and some experts have opined that this makes mandating the vaccine problematic. While most legal experts agree that employers can mandate vaccines, the issue of EUA status leaves the legal landscape somewhat unsettled. Fortunately, Pfizer has indicated that they are pursuing full authorization from the FDA, and the issue will become much clearer as soon as that full authorization is granted. For now, we recommend that employers encourage or incentivize employees to get the vaccine with benefits such as additional paid time off. Also, it’s important to remember that employers that do elect to mandate the vaccine must allow exceptions for individuals that are medically unable to receive the vaccine or who have a sincerely held religious objection.

TO DO

1.   Be sure to distribute the required COBRA notices to any affected employees before May 31, 2021.

2.   If you have employees in California, post or email the California paid sick leave poster to those employees.

3.   Implement generous vaccine paid time off policies to encourage your employees to get vaccinated.

As always, please reach out if you have questions or need assistance.