President Biden’s American Rescue Plan Act (“ARPA”) rolled out several features to address the ongoing health and business impacts of the COVID-19 pandemic. While this newsletter cannot possibly address the full scope of the ARPA, here are some highlights.

Emergency Paid Sick Leave

You will recall that the Families First Coronavirus Relief Act (FFCRA) passed in April of 2020 included up to 80 hours of Emergency Paid Sick Leave for 6 possible reasons. That paid leave expired December 31, 2020. However, the government extended the payroll tax credits for certain eligible employers who volunteered to continue to offer this leave through March 31, 2021.

The ARPA now expands that program, but with a twist. An eligible employer (succinctly, a private employer of fewer than 500 employees) can voluntarily choose to provide a new up to 80 hours under this type of leave to its employees from April 1 through September 30, 2021, and be eligible for the payroll tax credit. The ARPA resets the clock for the 80 hours of paid leave, even if an employee already utilized 80 hours of paid leave through March 31, 2021. They are now entitled to an additional 80 hours from April 1 through September 30 under the ARPA.

The ARPA also expands one of the eligible reasons for leave, shown by the underlining below:

(1) The employee is subject to a Federal, State, or local quarantine or isolation order related to COVID-19.

(2) The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19.

(3) The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis, the employee is seeking or awaiting the results of a diagnostic test for, or a medical diagnosis of, COVID-19 and such employee has been exposed to COVID-19 or the employee’s employer has requested such test or diagnosis, or the employee is obtaining immunization related to COVID-19 or recovering from any injury, disability, illness, or condition related to such immunization.

(4) The employee is caring for an individual who is subject to an order as described in subparagraph (1) or has been advised as described in paragraph (2).

(5) The employee is caring for a son or daughter of such employee if the school or place of care of the son or daughter has been closed, or the child care provider of such son or daughter is unavailable, due to COVID-19 precautions.

(6) The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.

There are caps and additional rules, but this should get you started. (Note: Although the IRS has issued a news release regarding the ARPA tax credits, it has not yet updated its FAQs on the payroll tax credits.)

Remember that it is entirely voluntarily for employers to provide paid leave under the ARPA (for both emergency paid sick leave and expanded family medical leave, discussed below) and receive the tax credits. Employers are not required to do so. But for those employers who decide to, they cannot pick and choose which provisions they want to comply with under each umbrella; you must adopt the entirety of emergency paid sick leave, the entirety of expanded family medical leave, or both. You cannot, for example, offer emergency paid sick leave when the employee has been told by a doctor to quarantine because they have COVID-19 but refuse to offer it when the employee is getting vaccinated for COVID-19 or recovering from side effects after the vaccine.

Expanded Family Medical Leave

The FFCRA also provided for expanded family medical leave for up to 12 weeks, which expired on December 31, 2020. Again, this was extended through March 31, 2021, and is now being extended (with a twist) by the ARPA.

The reason for this type of leave has been expanded greatly under the ARPA, as noted by the underlining below. Paid leave is available when:

… the employee is unable to work (or telework) due to a need for leave to care for the son or daughter under 18 years of age of such employee if the school or place of care has been closed, or the child care provider of such son or daughter is unavailable, due to a public health emergency, or any reason for leave described in section 5102(a) of the Families First Coronavirus Response Act, or the employee is seeking or awaiting the results of a diagnostic test for, or a medical diagnosis of, COVID-19 and such employee has been exposed to COVID-19 or the employee’s employer has requested such test or diagnosis, or the employee is obtaining immunization related to COVID-19 or recovering from any injury, disability, illness, or condition related to such immunization.

Section 5102(a) is the definition from the Emergency Paid Sick Leave Act discussed above. This greatly expands the reasons an employee could take expanded family medical leave. The new law has also done away with the requirement that the first 2 workweeks of this leave be unpaid. Of course, no employee can “double dip.” If you offer both programs and an absence qualifies under both, you would apply the Emergency Paid Sick Leave first.

Again, there are additional rules, caps, etc., but you should be aware of the expansive nature of the reasons the leave may be taken as you consider whether to offer this leave.

COBRA

The ARPA also provides temporary assistance for COBRA health insurance premiums to “assistance eligible individuals” from April 1, 2021, through September 30, 2021. If you are an employer to whom COBRA applies, you should become familiar with this program. Plans and issuers are required to provide notices to all qualified beneficiaries who have a qualifying event from April 1 through September 30, 2021. Certain notices may also be required to an Assistance Eligible Individual of a possible extended COBRA election period if their qualifying event occurred prior to April 1, 2021.

For more information including model notices, the Employee Benefits Security Administration has developed a COBRA Premium Subsidy page.

By Kristen L. Brightmire, kbrightmire@dsda.com