United States: Caton Discusses Voluntary FFCRA Leave With SHRM

Pryor Cashman Counsel LaKeisha M.A. Caton sat for a conversation with Allen Smith from the Society for Human Resource Management (SHRM)  to discuss whether employers should resume voluntary Families First Coronavirus Response Act (FFCRA) leave due to the COVID-19 "Delta Variant" that has been raging throughout the nation. As Smith notes, the answer depends on the optics of resuming so close to the scheduled end of the tax credit for voluntary FFCRA leave, the ability of the business to allow employees to take the leave and whether the resumption violates the American Rescue Plan Act (ARPA).

According to Caton, 

"Given the delta variant and significant increase in COVID-19 cases, employers that previously discontinued voluntary FFCRA leave may want to consider voluntarily providing FFCRA leave now. Employers that choose to restart voluntary FFCRA leave should make sure to administer the benefits in a manner that will allow them to take advantage of the FFCRA tax credits."

However, according to both Smith and Caton, there are numerous considerations that employers should weigh in their decision. Caton goes on to note that:

ARPA "reset" the 10-day limit for the tax credit for paid sick leave under the FFCRA as of April 1. In other words, "employers that discontinued voluntary FFCRA leave prior to April 1, 2021, and are now restarting voluntary FFCRA leave should therefore replenish the EPSL banks of all eligible employees so that they each have 10 sick days-or 80 hours-available in order to take advantage of the FFCRA tax credits."

"If the original balances are not reset, employees who may be experiencing symptoms of COVID-19 or side effects from the vaccine may be less likely to call in sick due to the lack of paid sick time available. This decision could have disastrous consequences for an employer's workforce."

"This may especially be an issue for small employers or employers with generous paid-time-off policies. Employers cannot require employees to use their accrued paid time off and EPSL leave concurrently under the FFCRA, and it may not be practical for some employers to provide employees with 80 hours of EPSL leave that they can stack on top of their accrued paid time off."

The full article can be found on SHRM's online channel here.

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