By Tracey I. Levy

New York State employers face yet another payroll cost challenge as the state has now mandated, as of March 12, 2021, that employees be granted up to four hours of paid leave (separate from all existing paid time off benefits) for purposes of receiving the COVID-19 vaccine.  This is in addition to the state’s mandates for employers to provide up to three two-week intervals of COVID-19 sick leave, at least a portion of which must be paid by all but the smallest employers, as we have discussed in prior blog articles.

Fortunately, among the financial benefits included in the new American Rescue Plan Act (“ARPA”) are several provisions that are particularly helpful to New York State employers struggling to comply with the state’s unfunded COVID-19-related paid leave mandates.  While not mandatory, ARPA authorizes employers to claim a dollar-for-dollar tax credit for qualifying wages paid to employees for leave taken under the Families First Coronavirus Response Act (“FFCRA”).  ARPA expands the list of FFCRA-qualifying leaves, and it extends the FFCRA leave eligibility period.

Expansion of FFCRA Leave

The FFCRA was originally designed to provide employees with up to 10 days of paid sick leave for six qualifying reasons: (i) inability to work due to a government-issued quarantine or isolation order related to COVID-19; (ii) inability to work due to quarantine or isolation on advice of a health care provider related to COVID-19; (iii) if the employee was experiencing COVID-19 symptoms and seeking a medical diagnosis; (iv) if an employee was caring for someone subject to quarantine for COVID-19; (v) to care for a child whose school or childcare center was closed for COVID-related reasons; and (vi) if an employee was experiencing substantially similar conditions as specified by the Secretary of Health and Human Services.

ARPA expands that list to permit FFCRA paid sick leave for three additional reasons:

• to take time off to get a vaccine;
• to recover from illness or injury related to the vaccine; or
• while awaiting the results of a COVID-19 test or diagnosis because the employer requested that the employee be tested or because the employee was exposed to someone who had tested positive for COVID-19.

The FFCRA originally offered an additional benefit of 12 weeks of Emergency FMLA leave (under the Emergency Family Medical Leave Expansion Act), which comprised two weeks of unpaid, and 10 weeks of paid, leave at two-thirds of the employee’s salary, up to $200 per day.  EFMLA leave was available, however, solely for reason “v” as listed above – to care for a child whose school or childcare center was closed for COVID-related reasons.  ARPA now expands eligibility for EFMLA leave to all nine of the qualifying reasons specified above.   ARPA also increases the paid component so that an employee can receive partial salary for all 12 weeks of the leave period.

Extension of FFCRA Leave

In addition to expanding the qualifying reasons for FFCRA leave, ARPA extends the period in which an employee can qualify for the leave through September 30, 2021.  ARPA also resets the clock on the 10-day cap on eligible COVID-related sick leave as of April 1, 2021, so that employees who have already taken FFCRA qualifying paid sick leave since the start of the pandemic can take up to 10 additional days of leave for a qualifying reason subsequent to April 1, 2021.