EMERGENCY PAID SICK LEAVE AND EFML EXTENSION AND CHANGES UNDER THE AMERICA RESCUE PLAN ACT
Updated: May 17, 2021
By Paula Jackson
April 16, 2021 (Updated May 13, 2021)
Under the American Rescue Plan Act of 2021 (“ARPA”), certain employers can voluntarily extend the Families First Coronavirus Response Act’s (“FFCRA”) Emergency Paid Sick Leave (“EPSL”) and Emergency Family Medical Leave (“EFML”) to employees from April 1, through September 30, 2021, and receive certain tax credits.
ARPA changes some of the EPSLA and EFML leave requirements and obligations for this time frame. Basically, employees can now get up to 14 weeks of combined paid leave (i.e., 10 days for EPSL and another 12 weeks for EFML) for nine qualifying reasons.
The 10-day EPSL bank of available leave starts over April 1, 2021, and now includes not only the six previous qualifying reasons for leave but also the following three qualifying reasons for leave: (1) obtaining a COVID-19 vaccine; (2) recovering from any illness or condition related to that vaccine; or (3) seeking or awaiting results of a COVID-19 diagnosis or test if the employee was exposed to COVID-19 or the employer requested the test or diagnosis.
As of April 1, 2021, employees can now use EFML for any of the six qualifying reasons previously stated under EPSL (instead of just for childcare) as well as for the three new qualifying reasons stated above (e.g., getting a vaccine, recovering from any condition related to that vaccine, or getting a test or diagnosis if exposed to COVID or required by the employer). Additionally, the employee should now be paid for the entire 12 weeks of EFML. Further, ARPA increased the limit on the tax credit for EFML wages to $200 per day for up to a total of $12,000 per employee (instead of the previous $10,000 cap).
However, with regard to both EPSL and EFML, an employer cannot take the tax credit if it discriminates in favor of employees who are highly compensated, are full-time, or have longer employment tenure with that employer. 
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 See American Rescue Plan Act of 2021 (“ARPA”), Section 3131, 3132 at https://www.govinfo.gov/content/pkg/BILLS-117hr1319enr/pdf/BILLS-117hr1319enr.pdf. ARPA allows businesses with less than 500 employees and certain governmental employers (i.e., “other than the federal government and any agency or instrumentality of the federal government that is not an organization described in section 501(c)(1) of the Internal Revenue Code”) to claim tax credits for providing EPSL and EFML from April 1, 2021, through September 30, 2021. See “Under the American Rescue Plan, Employers Are Entitled to Tax Credits for Providing Paid Leave to Employees Who Take Time Off Related to COVID-19 Vaccinations,” I.R.S. Topics in the News FS-2021-09 (April 2021), https://www.irs.gov/newsroom/employer-tax-credits-for-employee-paid-leave-due-to-covid-19.  See id.  See ARPA, Section 3131(c). The original six reasons for qualifying leave under the EPSL were that the employee was: (1) under government quarantine order related to COVID-19; (2) was told to quarantine by a medical provider due to COVID-19; (3) had symptoms of COVID-19 and was seeking a diagnosis; (4) was caring for an individual who was subject to government quarantine order or seeking a medical diagnosis; (5) was caring for a child if the school/caregiver was closed/unavailable due to COVID-19 precautions; or (6) was experiencing another substantially similar condition. See Section 5102(a) of the Families First Coronavirus Response Act.  See id.  See ARPA, Section 3132(c)(2)(A)(ii).  See ARPA, Section 3132(c).
 See ARPA, Sections 3131(j); 3132(j).