​Approximately 37% of the U.S. has received at least one dose of a COVID-19 vaccine and 21% of the population is fully vaccinated. With increasing vaccination rates comes decreasing cases and deaths, but the effects of the pandemic still permeate throughout our communities.

As a result, the federal government continues to provide assistance through numerous pieces of COVID-19-centered legislation—many of which impact the workplace. Read on to learn more about the Emergency Paid Sick Leave Act, the Emergency Family and Medical Leave Expansion Act, and the American Rescue Act of 2021.

In March of 2020, although not made effective until April 1, 2020, Congress passed the FFCRA, which (a) created a paid sick leave benefit at the federal level, the Emergency Paid Sick Leave Act (EPSLA); and (b) amended the Family Medical Leave Act (FMLA) to allow for paid leave where school and child care facilities were closed because of COVID-19, establishing the Emergency Family and Medical Leave Expansion Act (EFMLEA).
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The FFCRA provided small and midsize employers refundable tax credits to reimburse them for the cost of providing their employees paid sick and family leave related to COVID-19. Businesses with fewer than 500 employees received funds to provide the leave.

Emergency Paid Sick Leave Act

The EPSLA provided for two weeks (up to 80 hours) of paid sick leave at the employee’s regular rate of pay to some workers who contracted COVID-19 or were directed by a health authority to quarantine and provided two weeks of paid sick leave at two-thirds the employee’s regular rate of pay for employees taking care of a sick, quarantined, or displaced family member (such as children whose schools or daycare centers have closed).

Emergency Family and Medical Leave Expansion Act

The EFMLEA required covered employers (those with fewer than 500 employees) to pay employees up to an additional ten weeks of paid expanded family and medical leave at two-thirds the employee’s regular rate of pay where an employee was taking care of a child whose school or child care provider was unavailable because of COVID-19.
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However, the FFCRA’s paid leave provisions expired on December 31, 2020 and the stimulus measure signed into law on December 27, 2020 omitted the paid sick and family leave mandates. The new bill did, however, continue the refundable tax credit to subsidize the cost to businesses if they provide paid sick and family leave until March 31, 2021, so employers who voluntarily provide emergency paid leave could continue claiming the tax credit equal to 100 percent of the cost of the paid leave through March.

Noting the continuing impact of the pandemic on employees, President Biden signed into law further legislation—the ARPA of 2021—to expand the scope of both the EPSL and the EFMLA to allow employers to voluntarily provide additional leave from April 1, 2021 through September 30, 2021, although the new FFCRA leave under the ARPA is not mandatory. Notably, employers may voluntarily provide employees a new bank of up to 80 hours of EPSL and 12 weeks of EFMLA and the tax credit will still apply as long as the leave is taken by September 30, 2021.

The ARPA also expanded the list of reasons for which employees may take EPSL leave, including to get a vaccine, to recover from adverse effects of the vaccine, and while awaiting results of a COVID-19 diagnosis or test. Likewise, it expanded the EFMLA to allow employees to use EFMLA leave for any reason they are entitled to take EPSL leave. Unlike the original EFMLA, the entire 12 weeks of EFMLA is now paid, at a rate of two-thirds of the employee’s regular rate, up to $200 per day.
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It is important to note, however, that the ARPA does not require employers to provide leave, but gives them the option and provides tax credits to those who choose to provide such leave.

Are you experiencing difficulties at work due to COVID-19?

Have you had trouble acquiring paid leave?
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​Curious if the EPSLA, EFMLA or ARPA applies to you?

​President Biden has made his pro-union stance clear, and Congress has recently passed two pieces of legislation that align with his vision for union-friendly policies. 

On February 4, 2021, House and Senate Democrats introduced the Protecting the Right to Organize (PRO) Act, a comprehensive labor legislation aimed at bolstering workers’ collective bargaining rights that would result in sweeping changes to the NLRA. Among those changes are:

• Drastically expanding damages, fines, and civil penalties for Act violations, including to unauthorized aliens;

 

• Allowing parties to negotiate collective bargaining agreement provisions requiring employees to pay union dues or face termination, even in right-to-work states like Texas;

 

• Prohibiting employers from permanently replacing strikers and locking out employees;

 

• Expanding the definition of “joint employer” to cover where an entity’s control over employees is indirect or reserved; and

 

• Narrowing the definition of a “supervisor” to make it more difficult for an employer to classify its front-line supervisors and management as exempt from unionization.

 
The PRO Act passed in the House on March 9 with little bipartisan support, has the support of President Biden, and is awaiting a vote by the Senate.

 
The bill is not without its criticisms, though, even among pro-union activists. A critical, and controversial, aspect of the bill passed by the House is that it adopts California’s “ABC” test for determining whether an individual is an employee or an independent contractor. According to the bill:
 
“An individual performing any service shall be considered an employee and not an
independent contractor, unless --

• (A) The individual is free from control and direction in connection with the performance of the service, both under the contract for the performance of service and in fact;

• (B) The service is performed outside the usual course of the business of the employer; and

• (C) The individual is customarily engaged in an independently established trade, occupation, profession, or business of the same nature as that involved in the service performed.”

Critics contend that subsection (B) could cripple the successful freelance industry in the ever-expanding gig economy while proponents argue the Act is narrowly concerned with whether workers possess rights under the Act and that does not mean a freelancer will automatically lose work or be pressured into unionizing.

​As part of the American Rescue Plan, the coronavirus stimulus package that passed on March 11, 2021, the Butch Lewis Emergency Pension Plan Relief Act (EPPRA) constitutes a massive rescue for the 10 million members and retirees of financially struggling labor-management multiemployer pension funds for at least a period of 20 years. Pension funds that had already cut benefits for their members will pay back workers the amount they owe.
 
The bill, named after pension activist Butch Lewis, who died early in the campaign, was the product of an eight-year fight that began in 2013 when the Central States Pension Fund began signaling that it thought the law needed to be changed to allow cuts to maintain solvency. The fund, along with labor leaders from the Teamsters and Building Trades unions, launched a lobbying organization called “Solutions Not Bailouts” that advocated for fundamental change to U.S. retirement law.
 
Part of the issue that led to the pension fund crisis lied with hedge fund companies and Wall Street players mismanaging the funds. Although EPPRA does not directly prohibit these riskier investment strategies, it does require that federal distributions into the underfunded pensions be invested in low-risk investment grade bonds.

This union pension bailout is a single lump sum payment, and multiemployer plans may use the assistance to make benefits payments and to pay plan expenses. To qualify for assistance, the multiemployer plan must either:

1. Be in critical and declining status;
2. Have previously imposed a benefits suspension under the Multiemployer Pension Reform Act of 2014;
3. Be in critical status, have a modified funded percentage of less than 40 percent on a current liability basis, and have a ratio of active to inactive participants of less than 2 to 3; or
4. Be insolvent.

 
The law does not state how the financial assistance will impact a contributing employer’s withdrawal liability. The House bill stated that employer withdrawal liability would not consider any special financial assistance for 15 years after a plan received assistance, but the Senate removed this provision to avoid a procedural violation under the reconciliation process.
 
For the millions of retirees whose monthly pension was set to have gone insolvent by 2025, however, the Act comes as a momentous relief.

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