Benefits Q&A: Can an Employee Use Another 80 Hours of Emergency Paid Sick Leave?

Q: I understand that emergency paid sick leave (EPSL) under the FFCRA has been extended, to some extent, past its original expiration date of December 31, 2020. What I’m confused about is if employees who already received the paid leave last year are entitled to an additional 80 hours of leave during the extension? If so, can you provide documentation that would support the additional 80 hours?  I called the U.S. Department of Labor and was told it only applies to federal employees.

A: First, this type of leave is no longer mandatory. So, in that sense, the answer to your question is no, employees are not entitled to an additional 80 hours. However, the American Rescue Plan Act (ARPA) allows employers that voluntarily offer EPSL through the end of September 2021 to claim a refundable tax credit. It sounds like the DOL person you spoke to misunderstood either the law or the question you were asking. It’s true that only federal employees are entitled to FFCRA leave, but the tax credit is still available to other employers.

In addition, ARPA converted the 80 hours of EPSL to an annual allotment that started over as of April 1 (even though as of now the credit is scheduled to expire at the end of September). In other words, employers can claim the tax credit for the same employee(s) who used their full allotment of FFCRA leave prior to April 1, 2021. The statutory citation for this is 26 U.S.C. sec. 3131(c)(2)(A)(ii).

Because there is a lag time between laws being passed and governmental resources being updated, I can’t provide an official government document that states this clearly. Still, there are multiple articles available online that discuss this aspect of the law. Here are a couple from the two law firms we partner with:

• Husch Blackwell: The New FFCRA Under The American Rescue Plan Act
• Jackson Lewis: American Rescue Plan Extends FFCRA Tax Credit, But Not The Mandate

I hope this answers your questions! As always, feel free to contact me directly if you would like to discuss further.

• 

  By Julie Athey, J.D., Director of Compliance, The Miller Group

  See also:

  COVID-Inspired FSA Provisions Offer Increased Flexibility for Employees
  Benefits Q&A: Can Employees Use PTO for Post-Vacation Quarantine?
  Dept. of Labor Reissues FFCRA Regulations That Court Struck Down