Published on March 17, 2021
Passed last week, The American Rescue Plan Act of 2021 made some important changes to the Families First Coronavirus Response Act (FFCRA). Notably, employers can now give employees leave under the FFCRA to get vaccinated. Additionally, FFCRA paid leave benefits are no longer mandatory but employers can voluntarily continue providing paid leave benefits with the option of claiming the payroll tax credit. The American Rescue Plan extended the tax credit through September 30, 2021. The new law also resets the 80 hour limit for emergency paid sick leave starting April 1, 2021, meaning that if an employer decides to voluntarily provide emergency leave after April 1, they can obtain a tax credit for up to 80 hours per employee (for qualifying reasons) between April 1 and Sept 30, 2021, even if that employee had previously used up their FFCRA emergency paid leave. However, note that because the reset date is April 1, if an employee has used up FFCRA paid emergency leave and the employer provides paid emergency leave between now and April 1, the employer would not get the tax credit.
Some employers may provide incentives such as bonuses, gift cards or gifts to encourage employees to become vaccinated. While there is concern that substantial incentives could be seen as a mandate, the EEOC has yet to issue guidance on this issue. Employers with high risk aversion may instead consider offering minor incentives (a smaller gift or gift card) which eliminates the argument that the gift is coercive. Employers with lower risk aversion may consider more substantial incentives such as bonuses.
Here are some best practices and recommendations for employers, given this fast-changing landscape and lack of EEOC guidance:
- Employers may consider an incentive program which provides incentives such as paid time off to get vaccinated, a gift card, or other benefit. How much incentive is offered depends on risk tolerance.
- Employers must exempt or accommodate individuals who have medical or religious reasons for not getting vaccinated. If any employees fall into these categories, the employer should be careful not to ask prohibited questions about their disability or religion.
- Limit any information collected to that which is essential for the administration of the incentive program, and keep that information confidential.
- Treat all similarly-situated employees the same way to minimize the risk of discrimination claims.
For questions, please contact any member of Ryan Swanson’s Employment Rights, Benefits & Labor group.
This message has been released by the Immigration Group at Ryan, Swanson & Cleveland, PLLC to advise of recent developments in the law. Because each situation is different, this information is intended for general information purposes only and is not intended to provide legal advice on any specific facts and circumstances. Ryan, Swanson & Cleveland, PLLC is a full-service law firm located in Seattle, Washington.