The IRS updated its FAQ on “Tax Credits for Paid Leave Under the American Rescue Plan Act of 2021,” adding Question 27a that creates a “substantially similar condition” under the Families First Coronavirus Relief Act (FFCRA) Section 5102(a)(6) that allows a credit for leave time paid to employees who take leave to:

• Accompany an individual with a qualifying relationship to the employee or self-employed person who is obtaining a vaccination or

• Care for an individual with a qualifying relationship to the employee or self-employed person who is recovering from a vaccination.[1]

In IRS News Release 2021-160, released at the same time as the additional question and answer were posted to the IRS website, the IRS describes the credit for paid leave as follows:

The paid sick and family leave tax credits under the ARP are similar to those put in place by the Families First Coronavirus Response Act (FFCRA), as amended and extended by the COVID-related Tax Relief Act of 2020 (Tax Relief Act), under which certain employers could receive tax credits for providing paid sick or family leave that met the requirements of the Emergency Paid Sick Leave Act and the Emergency Family and Medical Leave Expansion Act (as added by FFCRA). The tax credits under the FFCRA, as amended and extended by the Tax Relief Act, covered leave taken beginning April 1, 2020, through March 31, 2021. The ARP amends and extends these credits to leave taken beginning April 1, 2021, through Sept. 30, 2021.[2]

Question 27a provides:

27a. Do “qualified sick leave wages” include wages paid for leave taken to accompany an individual who is obtaining a vaccination or to care for an individual who is recovering from vaccination? (added July 29, 2021)

Yes.  Under section 5102(a)(6) of the FFCRA, an Eligible Employer may pay qualified sick leave wages to an employee who is experiencing any other “substantially similar condition,” as specified by the Secretary of HHS, in consultation with the Secretary of the Treasury and the Secretary of Labor, to a condition for which the Eligible Employer may otherwise pay qualified sick leave wages. The Secretary of HHS has specified, in consultation with the Secretaries of Treasury and Labor, that an employee who takes leave to accompany an individual to obtain immunization related to COVID-19, or to care for an individual who is recovering from any injury, disability, illness, or condition related to the immunization, is experiencing a “substantially similar condition” under section 5102(a)(6) for which the Eligible Employer may pay qualified sick leave wages.

The HHS Secretary further specified that, for this purpose, “individual” has the same meaning as was assigned to that term in 29 CFR 826.20(a)(5) for purposes of the FFCRA.  Thus, “individual” means an immediate family member, someone who regularly resides in the employee’s home, or a similar person with whom the employee has a relationship that creates an expectation that the employee would care for the person.  For this purpose, “individual” does not include persons with whom the employee has no personal relationship.[3]

A conforming change was made to Question 31, adding these conditions to the paragraph describing “other substantially similar conditions.”[4]

The new revision also applies to the similar credit for the self-employed.[5]

The “substantially similar condition” provision in FFCRA §5102(a)(6) is a type of leave that is an amount that is up to:

• Two-thirds of the employee’s regular compensation for the time in question (but no less than minimum wages) but

• Not more than $200 per day.[6]

As was true before this change, an employee who is given paid leave for time to obtain a vaccination for him/herself or given paid time off to recover from the effects of the vaccination would entitle the employer to a credit for up to 100% (rather than two-thirds) of the employee’s regular rate of pay, capped at $511 per day (rather than $200).[7]

[1] Tax Credits for Paid Leave Under the American Rescue Plan Act of 2021: Determining the Amount of the Tax Credit for Qualified Sick Leave Wages, Question 27a, IRS website, July 29, 2021, https://www.irs.gov/newsroom/tax-credits-for-paid-leave-under-the-american-rescue-plan-act-of-2021-determining-the-amount-of-the-tax-credit-for-qualified-sick-leave-wages (retrieved July 29, 2021)

[2] Paid leave credit available for providing leave to employees caring for individuals obtaining or recovering from a COVID-19 immunization, IRS News Release IR-2021-160, July 29, 2021, https://www.irs.gov/newsroom/paid-leave-credit-available-for-providing-leave-to-employees-caring-for-individuals-obtaining-or-recovering-from-a-covid-19-immunization (retrieved July 29, 2021)

[3] Tax Credits for Paid Leave Under the American Rescue Plan Act of 2021: Determining the Amount of the Tax Credit for Qualified Sick Leave Wages, Question 27a, IRS website, July 29, 2021

[4] Tax Credits for Paid Leave Under the American Rescue Plan Act of 2021: Determining the Amount of the Tax Credit for Qualified Sick Leave Wages, Question 31, IRS website, July 29, 2021

[5] Paid leave credit available for providing leave to employees caring for individuals obtaining or recovering from a COVID-19 immunization, IRS News Release IR-2021-160, July 29, 2021

[6] IRC §3131(b)(1)

[7] IRC §3131(b)(1)