** The information contained here is provided solely for a general information purpose.  It should not be interpreted as legal advice and does not constitute an attorney client relationship. The posted documents are samples and League attorneys have not reviewed them for legal sufficiency. The League’s attorneys do not provide legal representation to individual municipalities or officials; we encourage our members to consult their municipal attorneys on questions of law. **

American Rescue Plan Act (ARPA) And Employee Leave

Government Employers are Now Eligible for Tax Credits if Voluntarily Extending FFCRA Leave – Update as of April 30, 2021:

The original version of the Federal Families First Coronavirus Response Act (FFCRA) went into effect April 1, 2020 and required employers to provide emergency paid sick leave and expanded family leave to employees under the terms specified by the law.  The requirements of the FFCRA expired December 31, 2020.

Beginning January 1, 2021, employers could voluntarily provide paid leave under the FFCRA and in return private sector employers were eligible for payroll tax credits to cover the cost of providing the leave.  This option was due to expire March 31, 2021.  Few local governments decided to voluntarily provide the paid leave in part because they were not eligible to receive the payroll tax credits that were available to private sector employers.

The American Rescue Plan Act (ARPA) extended the voluntary paid leave option and payroll tax credits to September 30, 2021.  In recently-issued guidance, the IRS confirms that state and local governments are now eligible for the payroll tax credits if they choose to provide paid leave under the FFCRA as modified by the ARPA (see Summary of Voluntary Paid Leave Provisions Under the Families First Coronavirus Response Act as changed by the American Rescue Plan Act.)

How do the payroll tax credits work?

Employers claim the tax credits by retaining payroll taxes that would otherwise be deposited with the IRS. They may retain payroll taxes equal to 100%of the qualified wages paid for leave under the FFCRA (as expanded by the ARPA), the employer’s share of Medicare owed on the wages, and any qualified health plan expenses that are allocable to the qualified wages. Employers must claim these paid leave tax credits on their Form 941 for the quarter in which they pay the leave wages.

Information on the amount of tax credits, how they are calculated, and how to claim the credit can be found on the IRS website: https://www.irs.gov/newsroom/employer-tax-credits-for-employee-paid-leave-due-to-covid-19.   The tax credits, required support for the credits, and completion of related IRS tax forms can be complicated and members who have questions should consult a municipal tax professional.

What Does This Mean for League Members?

  1. Your community can decide if it will provide paid sick leave and/or paid family leave as of April 1st through September 30th under the FFCRA as changed by the ARPA. To reiterate, these provisions are not mandatory, but employers can choose to voluntarily provide the benefits of the act and take advantage of payroll tax credits if they do. Employers who choose to provide the paid sick leave or the expanded family and medical leave must comply with the leave requirements of each law in order to claim the tax credits.
  2. The tax credits are only available to employers who provide the leave provisions without discriminating in favor of highly compensated employees, full-time employees, or based on employee tenure.
  3. If your community elects to provide the leave and claim tax credits, you must maintain IRS-required documentation, which you can find here: https://www.irs.gov/newsroom/how-should-an-employer-substantiate-eligibility-for-tax-credits-for-qualified-leave-wages.

Federal Families First Coronavirus Response Act (FFCRA)

**The FFRCA has expired**

As of December 31, 2020, the Families First Coronavirus Response Act (FFCRA) and the programs it established, Expanded FMLA Leave and Paid Emergency Sick Leave, have expired. Municipal employers may choose, but are not required, to continue to provide FFRCA-type leave to employees. However, municipal employers who voluntarily continue providing such leave will no longer be exempt from paying the employer-share of FICA taxes for wages paid under the leave. Any tax treatment extension of the FFCRA applies only to private sector employers. Information provided on this page relating to the FFCRA is for reference only. 

HR 6201 Families First Coronavirus Response SUMMARY

HR 6201 Families First Coronavirus Response Paid Sick Leave

Families First Coronavirus Response Act: Employee Paid Leave Rights US Department of Labor

FFCRA Webinar from US Department of Labor The DOL Wages and Hours Division (WHD) invites webinar viewers to call the agency’s toll-free help line at 866-4US-WAGE to speak with a trained WHD professional about any questions they may have.

Sample Employee Policy and Guidance

Sample Employee Policy and Guidance (Revised 9.18.20)
At this time, a policy is not required to implement paid leave under the FFCRA. This sample policy has been prepared for municipalities choosing to use a policy and to provide a more detailed explanation of the FFCRA’s requirements than contained in the Department of Labor’s Notice poster. Note, municipalities are permitted, but not required, to exempt emergency responders from paid leave under the FFCRA. This sample policy excludes emergency responders. See “Considerations for Use of Sample Policy (Revised)” on the first page for additional information. Read the sample policy here. (PDF) September 18, 2020.

Sample FFCRA Employee Leave Request Form - Thanks to R&R Insurance
This is a sample only and it must be modified to suit the particular policies of your organization. Thank you to R&R Insurance for allowing our members to use their form. Sample form here. (PDF) 

FAQs Related to Families First Coronavirus Response Act (FFCRA)

** The FFCRA expired as of December 31, 2020. Any information on this page related to FFCRA is for reference only. 

Q: Who is an “emergency responder” under the Families First Coronavirus Response Act (FFCRA)? 
A: “For the purposes of employees who may be excluded from paid sick leave or expanded family and medical leave by their employer under the FFCRA, an emergency responder is an employee who is necessary for the provision of transport, care, health care, comfort, and nutrition of such patients, or whose services are otherwise needed to limit the spread of COVID-19. This includes but is not limited to military or national guard, law enforcement officers, correctional institution personnel, fire fighters, emergency medical services personnel, physicians, nurses, public health personnel, emergency medical technicians, paramedics, emergency management personnel, 911 operators, public works personnel, and persons with skills or training in operating specialized equipment or other skills needed to provide aid in a declared emergency as well as individuals who work for such facilities employing these individuals and whose work is necessary to maintain the operation of the facility. This also includes any individual that the highest official of a state or territory, including the District of Columbia, determines is an emergency responder necessary for that state’s or territory’s or the District of Columbia’s response to COVID-19.

To minimize the spread of the virus associated with COVID-19, the Department encourages employers to be judicious when using this definition to exempt emergency responders from the provisions of the FFCRA.” (Provided by the Federal Dept. of Labor.)

Click here for more DOL guidance regarding the FFCRA.

Q: Are employees of a local health department or agency considered “health care providers” that may be excluded from paid leave under the FFCRA?
A: No. Effective September 16, 2020, the U.S. Department of Labor’s Wage and Hour Division revised the regulations pertaining to paid sick leave and expanded family and medical leave provisions of the FFCRA. In particular, the definition of “health care provider” was revised to only include employees who meet the definition of “health care provider” as defined by the Family and Medical Leave Act or who are employed to provide diagnostic services, preventative services, treatment services, or other services that are integrated with and necessary to the provision of patient care which, if not provided, would adversely impact patient care. Based on the revised definition, local health departments no longer meet the definition of health care providers for purposes of being excluded from paid leave under the FFCRA.

Department of Labor Guidance on Calculating Regular Rate of Pay 

Wisconsin Dept of Employee Trust Funds FAQ

General FAQs

The following Frequently Asked Questions (FAQs) are answered in generality. Your municipality may have policies that specifically address questions regarding sending employees home sick and paid leave. In all cases your organization policies, handbook, or collective bargaining agreement should be followed over the following recommendations.

Q: Can I send an employee home who exhibits symptoms of COVID-19?

A: Yes, you can send an employee home who exhibits symptoms such as coughing, sneezing, or fatigue, much as you would for a cold or flu. You can ask them to stay home until they are symptom free. Employees should follow the recommended advice of the CDC and public health officials. More information form the CDC available here.

Q: Can I share if an employee is being tested or has been tested positive for COVID-19?

A: No, the Americans with Disabilities Act (ADA) prevents sharing of employee personal health information. However, employees should be notified that a possible exposure has occurred in the workplace without giving away the identity of the individual being tested. ADA is applicable to employers with 15 or more employees.

Q: Do I have to pay sick leave for employees who are affected by COVID-19 and do not have sick leave to use?

A: No, The Families First Coronavirus Response Act (FFCRA) expired on December 31, 2020. Municipal employers may choose, but are not required, to continue to provide FFRCA-type leave to employees. Any tax benefits under ARPA from this new employer voluntary leave provision are set to expire September 30, 2021.  

Q: Can I take an employee’s temperature?

A: According to an updated guideline from the EEOC, “Generally, measuring an employee’s body temperature is a medical examination. Because the CDC and state/local health authorities have acknowledged community spread of COVID-19 and issued attendant precautions, employers may measure employees’ body temperature. However, employers should be aware that some people with COVID-19 do not have a fever.” Employers should maintain as much confidentiality as possible with personal health information. March 18, 2020

Q: Can I require employees have day care while working at home?

A: Yes, employees working remotely should not be responsible for care of children or other persons during working hours. Requiring an employee have a care provider available during meetings and conferences is a reasonable expectation.

Q: Can I require an employee provide a doctor’s note before returning to work?

A: If an employee has disclosed a medical reason for paid or unpaid leave, you may require a doctor’s note upon their return. However, the medical system is likely overtaxed at this time and a doctor’s note may not be easily available.

Q: Can I ask if an employee has been or plans to get vaccinated against COVID-19?

A: Yes, but as a limited inquiry. The Americans with Disabilities Act (ADA) prohibits employers from asking questions that are likely to reveal the existence of a disability. However, the EEOC has clarified that asking an employee whether they have received the COVID-19 vaccine is not a disability-related inquiry under the ADA. Best practice is to preface the inquiry as a yes or no question. 

Q: Can I offer an incentive to employees who get vaccinated?

A: Yes, employers may offer a limited incentive to employees who get vaccinated, as long as the incentive is not coercive. EEOC cautions that a “very large incentive” could make employees feel pressured to disclose protected medical information.