Coronavirus in the Workplace

Small/Mid-Size Employers May Be Reimbursed for Paid Family Vaccination Leave!

By Fiona W. Ong - Shawe Rosenthal LLP

August 6, 2021

As part of his COVID-19 vaccination push, President Biden recently announced that (among other things) the program that reimburses certain employers for providing paid leave to employees for particular COVID-19-related reasons would be expanded to include leave to get family/household members vaccinated (and, although not part of the Presidential statement, to care for them if they experience adverse effects to the vaccine). So I’ve been trying to figure out how this actually worked.

If you recall, way back towards the beginning of the pandemic, Congress passed the Families First Coronavirus Response Act. Among (many) other things, the FFCRA imposed two leave mandates on employers with fewer than 500 employees: (1) a two-week emergency paid sick leave (“EPSL”) mandate for employees who are unable to work or telework due to six specific COVID-19-related reasons; and (2) a temporary expansion of coverage under the Family and Medical Leave Act (FMLA), to enable employees to take their twelve weeks of FMLA leave for school and childcare closures associated with COVID-19 (EFMLA), including a ten-week paid leave component. Significantly, employers are reimbursed for the cost of the leave(s) through a tax credit.

These mandates expired on December 31, 2020, but the stimulus bill passed by Congress on December 22, 2020 permitted covered employers to voluntarily allow its employees to use any remaining EPSL or EFMLA, and receive the corresponding tax credit, through March 31, 2021. The American Rescue Plan Act of 2021 (ARPA), then  extended the voluntary-leave-for-tax-credits program through September 30, 2021 and expanding it to add new reasons, including to allow an employee to get a COVID-19 vaccine and to recover from adverse reactions to the vaccine, and to allow the use of EFMLA for all the reasons, not just school/childcare closures.

Of relevance here, the last of the original six FFCRA-specified reasons for leave was a “substantially similar condition,” as specified by the Secretary of HHS, in consultation with the Secretary of the Treasury and the Secretary of Labor. Well, that has now happened! (All kinds of excitement here!)

In its recently updated FAQs on the FFCRA/ARPA tax credit, the Internal Revenue Service is asserting that the Secretary of HHS has specified (although I can’t find anything on the HHS website itself…) that an employee who takes leave to accompany an individual to obtain immunization related to COVID-19, or to care for an individual who is recovering from any injury, disability, illness, or condition related to the immunization, is experiencing a “substantially similar condition”.  As defined by the FFCRA “individual” means an immediate family member, someone who regularly resides in the employee’s home, or a similar person with whom the employee has a relationship that creates an expectation that the employee would care for the person.

So, covered employers (yes, those with fewer than 500 employees) can now offer paid sick leave or paid family and medical leave to their employees to take their family/household members to get vaccinated or to care for them if they experience adverse effects from the vaccine. But note that it’s not full pay! In accordance with the FFCRA/ARPA, leave taken for this family vaccination reason will be paid at 2/3 the employee’s regular rate, up to $200 per day (cap of $2000 aggregate for EPSL, $12,000 for EFMLA). And remember that this program ends on September 30, 2021. The IRS provides detailed information in its FAQs on how employers can apply for the tax credits to be reimbursed for providing this leave.

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