As the school year begins, school districts are again responding to requests for leave for COVID-related absences.
After the expiration of the leave mandated under the Families First Coronavirus Response Act (FFCRA) in December 2020, districts wishing to offer additional leave had the option to continue to offer FFCRA leave, to offer additional local leave through a resolution, or to offer only leave currently available in accordance with local policy. This article outlines options for offering additional leave for the 2021–2022 school year.
Local Leave Options
Districts can offer additional leave tailored to the district’s needs by board resolution. Remember, the resolution should be time-limited and easy to manage. Prior to approving a board resolution to extend any type of paid or unpaid leave, the following details should be considered:
- Type of leave available (e.g., paid leave, unpaid leave, both)
- Amount of leave (e.g., five days, 10 days)
- Rate of pay for paid leave option (e.g., full pay, two-thirds pay, half pay)
- Eligibility criteria (e.g., only for employees who have exhausted accrued leave, specific to certain employee groups, full- or part-time)
- Qualifying events (e.g., only for employees required to quarantine due to exposure at work, positive COVID-19 test)
- Coordination with existing leave provisions (e.g., add COVID-19 reason to eligibility criteria for leave pool or bank, increase number of extended sick leave days if COVID-19 related, forego neutral absence provision for pandemic-related absences)
- Effective period of resolution (e.g., expires with the onset of other federal leave program, ending December 31, 2021, or at the end of the 2021–2022 school year)
A board resolution is a simple solution to temporarily provide additional paid and unpaid leave options to employees. To overcome a challenge that additional leave is an unconstitutional gift of public funds, the resolution should name a public purpose for extending this benefit in the middle of a school year. Such a public purpose may be to protect students and staff, maintain morale, or reduce turnover.
TASB Legal has recently updated the customizable sample leave resolutions to extend local leave. These resolutions are available as a downloadable document in TASB Legal eSource. As always, TASB Legal recommends working with local legal counsel to determine the leave options that best fit district needs.
Extension of Federal Leave
Some districts may want to extend the same leave protections initially available under the FFCRA. Such an extension of leave is not currently required by federal law. A local extension of the benefits provided under the FFCRA would be governed by the American Rescue Plan Act of 2021 (ARP), which passed in March 2021 and is effective April 1, 2021, through September 30, 2021. Districts opting to continue to provide FFCRA-type leave should know that the latest federal relief package made significant changes to the implementation of Emergency Paid Sick Leave (EPSL) and Emergency Family and Medical Leave (EFML). Notably, if a district decides to offer federal leave under ARP, employees who exhausted sick leave under the FFCRA are entitled to an additional 10 days of paid sick leave. ARP also adds additional qualifying reasons for EPSL for vaccine-related absences or seeking or awaiting the results of a COVID-19 diagnosis or test in certain circumstances. ARP expands the reasons for EFML to include any of the qualifying reasons for EPSL and provides that all 12 weeks of EFML be paid.
A potential drawback of providing federal leave under ARP is that such an option may provide more benefits than a district desires, since the FFCRA provides paid leave for the employee’s illness and, potentially, for a person under the employee’s care through the Emergency Paid Sick Leave Act (EPSLA). Likewise, the district may not wish to extend paid leave for the care of a son or daughter whose place of care or school is unavailable, as provided by the Emergency Family Medical Leave Expansion Act (EFMLEA), which was part of the FFCRA. It is not clear at this time if employers may choose to provide EPSL or EFML, or both. Conservatively, we advise districts who continue to offer federal leave to offer the protections provided under FFCRA as expanded by ARP and not to pick and choose the reasons for leave.
A recent interpretation of ARP by the Internal Revenue Service (IRS) clarifies that state and local government employers, including educational entities such as school districts and community colleges, are employers that are eligible to claim refundable tax credits for COVID-19-related paid leave provided to employees. While tax credits are limited to private employers with fewer than 500 employees, state and local governments don’t have the same employee limits. If districts plan to take advantage of these tax credits, the district should work with local tax advisors or local legal counsel.
Leslie Story is lead attorney at TASB Legal Services. Send TASB Legal Services an email at email@example.com.
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