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Paid COVID-19 Leave: Unanswered Questions

The American Rescue Plan Act (ARPA) was signed into law by President Joe Biden on March 11, 2021. The act allocated $656.18 billion to American businesses for tax credits and paid sick leave to help assist organizations and their workers.

Still, there are many unanswered questions as to what the parameters surrounding the ARPA are for businesses.

Allen Smith, J.D. of the Society for Human Resource Management (SHRM) explored the following questions that many employers have for emergency paid sick leave (EPSL), and the emergency Family and Medical Leave Expansion Act (EFMLEA) under the Families First Coronavirus Response Act (FFCRA).

What qualifications does the FFCRA have?


  • An employee is subject to a federal, state, or local quarantine/isolation due to COVID-19.

  • A worker is subject to the advice of a health care provider to self-quarantine due to COVID-19.

  • An employee who is experiencing COVID-19 symptoms, also seeking a diagnosis.

  • A worker is caring for an individual subject to the first two qualifying reasons above.

  • An employee is caring for a child whose school/place of care is closed or childcare provider is unavailable due to COVID-19.

  • A worker is experiencing any other substantially similar condition identified by the secretary of Health and Human Services.

  • An employee is receiving a COVID-19 vaccine.

  • A worker is recovering from injury, disability, or condition from a vaccine.

  • An employee is seeking/waiting for COVID-19 test results because the employee has been exposed or the employer requested a test.

"Before ARPA, EFMLA [emergency family and medical leave] was available only for reasons related to the need to care for a child due to the unavailability of a childcare provider or the closure of a school or place of care," Fiona Ong, an attorney with Shawe Rosenthal in Baltimore said. "ARPA expanded the reasons to include all of those for sick leave, which is quite an extensive list."

Which types of organizations are impacted by the EPSL?

  • Private employers with fewer than 500 employees and other public employers have had to pay up to 80 hours or 10 days of sick leave to employees due to COVID-19.

What are employees eligible for under the EFMLEA?

  • Employees are eligible for an additional 10 weeks of family leave paid at two-thirds of their regular wages to care for a child whose school/place of care or child care provider is closed/unavailable due to COVID-19.

Should emergency paid leave be offered on an all-or-nothing basis?

Could an employer opt to only offer paid leave for workers who receive the COVID-19 vaccine, including recovery time from side effects, but neglect other forms of paid leave?

"This is still somewhat uncertain, absent guidance from the IRS or the DOL [Department of Labor]," Sarah Platt, an attorney with Ogletree Deakins in Milwaukee said. "Some commenters believe that employers must offer leave for all reasons covered under the EPSL or EFMLA respectively to qualify for the tax credit. I do not think that is the case, but the conservative approach for an employer relying on the tax credit would be to take an all-or-nothing approach."

Platt added, “employers are not required to provide both EPSL and EFMLA," she said. "EFMLA provides a longer period of leave—12 weeks—so employers may choose the more limited period under the EPSL to avoid having workers off for as long a period of time."

If you or your organization have any questions about the EPSL, EFMLEA, or ARPA Tax Credits, give us a call at (830) 331-1300 or visit



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