Legal Blog

Some Employers Required to Provide Paid Leave for Employee Family Member Vaccinations

Covid Vaccine BottleOn July 29, 2021, the Department of Treasury announced that the American Rescue Plan now includes two additional situations where employees can take Expanded Family Medical Leave or Paid Sick Leave. While the IRS announces this as something that could be optional, the American Rescue Plan renders it mandatory for some employers.

Before getting into the details of the amendment, let’s take a minute to review the pertinent points of the COVID Paid Leave:

  • April 1, 2021- FFCRA Became Effective
  • December 31, 2021- Consolidated Appropriations Act (Optional)
    • Congress passed the Consolidated Appropriations Act of 2021 that allowed for employers to opt-in to extending the FFCRA leave through March 31, 2021. In other words, employers could still provide paid leave for the reasons set forth in the FFCRA (see above), and obtain the tax credit.
  • April 1, 2021- American Rescue Plan (“ARP”) (Optional)
    • The ARP afforded employers the choice to opt-in to continuing to provide the leave under the FFCRA and obtain the tax credit; however, the ARP expanded the scenarios where one would be eligible for such leave. The purpose of these amendments was to account for paid time off related to getting the vaccine.

Quick Recap:

      • Paid Sick Leave: Under the ARP, employees could take Paid Sick Leave when they are unable to work or telework in the following scenarios (new text in bold):
        • A Federal, State, or local quarantine or isolation order related to COVID-19,
        • They’ve been advised by a health care provider to self-quarantine due to concerns related to COVID-19.
        • They are Experiencing symptoms of COVID-19 and seeking a medical diagnosis.

(A) the employee is seeking or awaiting results of a diagnostic test for, or a medical diagnosis of, COVID-19; and

(b) such employee has been exposed to COVID-19, or the employee’s employer has requested such test or diagnosis, or the employee is obtaining immunization related to COVID-19, or recovering from any injury, disability, illness, or condition related to such immunization

        • Caring for an individual who is subject to a Federal, State, or local quarantine or isolation order related to COVID-19.
        • Caring for an individual who has been advised by a health care provider to self-quarantine due to concerns related to COVID-19.
        • Caring for a son or daughter if the school or place of care of the son or daughter has been closed, or the child care provider of such son or daughter is unavailable, due to COVID-19 precautions.
        • The employee is experiencing any other Substantially Similar Condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.
      • Paid Family Leave: Under the ARP, employees could take Family Paid Leave when they are unable to work or telework for the following reasons:
        • To care for a child under the age of 18 if their school has been closed.
        • To care for a child under the age of 18 if their place of care has been closed.
        • To care for a child whose child care provider is unavailable due to a public health emergency.
        • Any reason under the FFCRA. (See reasons listed above for the Paid Sick Leave).
        • The employee is seeking or awaiting the results of a diagnostic test for, or a medical diagnosis of, COVID-19 and such employee has been exposed to COVID-19 or the employee’s employer has requested such test or diagnosis, or
        • The employee is obtaining immunization related to COVID–19 or recovering from any injury, disability, illness, or condition related to such immunization’ after ‘public health emergency
    • Employers Must Opt ALL IN
      • Under the ARP, employers could choose to extend either the Paid Sick Leave, or the Family Medical Leave, or both. However, the ARP is clear: Employers who opt-in, must abide by the FFCRA as if it applied after March 31, 2021.

In other words, if an employer opted to extend the Paid Sick Leave, then the employer had to operate as if the entire FFCRA (with the vaccination additions) applied. Employers could not extend the Paid Sick Leave under the ARP and only provide leave for 3 of the 7 reasons listed. Employers must provide Paid Sick Leave for all 7 reasons. The same is true for the Paid Family Leave. Employers cannot pick and choose when they provide such leave.

  • July 29, 2021- Paid Sick Leave and Family Leave Include Time Needed to Accompany Family to Get Vaccinated

As mentioned above, under the ARP, an employee can take Paid Sick Leave or Expanded Family Leave when the employee is “experiencing any other substantially similar condition specified by the Secretary of Health and Human Services.” The Department of Health and Human Services recently defined Substantially Similar Condition (“SSC”).

    • What is an SSC? An SSC is where an employee takes leave: (1) to accompany an individual to obtain immunization related to COVID-19, or (2) to care for an individual who is recovering from an injury, disability, illness, or condition related to the immunization. (IRS FAQ: Paid Sick Leave; IRS FAQ: Family Leave)
    • INDIVIDUAL
      • An Individual under the FFCRA regulations, and individual means an employee’s:
        • immediate family member,
        • a person who regularly resides in the Employee’s home,
        • a similar person with whom the Employee has a relationship that creates an expectation that the Employee who cares for the person if they were quarantined or self-quarantined.
    • This is big…and here is why….

Under the ARP employers who opt-in must abide by all facets of the law. The Employers cannot pick and choose. It follows that those employees who have extended the Paid Leave and/or the Expanded Medical Leave must provide paid leave to individuals who are caring for and/or accompanying individuals (as defined above).

Employers should consult with counsel regarding the time allotted for such leave and the appropriate rate of pay.

BOTTOM LINE FOR EMPLOYERS

  • Businesses who extended the FFCRA Leave under the ARP

These employers MUST provide paid leave for employees who are accompanying individuals to get vaccinated and/or caring for individuals who got vaccinated.

  • Businesses who did not extend the FFCRA Leave under the ARP

In light of the IRS’s push to “enable more vaccinations,” it seems that such employers could claim the tax credit. Prudent employers should consult with counsel and accountants regarding this issue.

Susie.Cirilli@offitkurman.com | 267.338.1395

Susie M. Cirilli is a Labor & Employment attorney that assists clients with issues involving the ADA, FMLA, and Title VII claims. Susie litigates on matters related to hostile work environment, discrimination based on sex, sexual orientation, pregnancy, race and disability. Susie has experience representing employers in fact-finding conferences and mediations before the PHRC and the EEOC. Susie’s practice also consists of counseling and advising clients on employment matters. She often advises employers on day to day employment matters and assists her clients on employee issues such as hiring and terminations, which includes drafting and negotiating separation agreements. Susie has experience drafting and revising employment agreements, employee handbooks, non-compete and non-solicitation agreements. Susie is admitted in the Middle District and Eastern District of Pennsylvania. She is also admitted in the Federal Court for the District of New Jersey.

 

 

 

 

 

ABOUT OFFIT KURMAN

Offit Kurman, one of the fastest-growing, full-service law firms in the United States, serves dynamic businesses, individuals and families. With 15 offices and nearly 250 lawyers who counsel clients across more than 30 areas of practice, Offit Kurman helps maximize and protect business value and personal wealth by providing innovative and entrepreneurial counsel that focuses on clients’ business objectives, interests and goals. The firm is distinguished by the quality, breadth and global reach of its legal services and a unique operational structure that encourages a culture of collaboration. For more information, visit www.offitkurman.com.

DELAWARE | MARYLAND | NEW JERSEY | NEW YORK | NORTH CAROLINA | PENNSYLVANIA |SOUTH CAROLINA | VIRGINIA | WASHINGTON, DC