August 8, 2022

Volume XII, Number 220


August 05, 2022

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Twisting Arms to Get Jabbed, White House Says: ‘Vaccination Incentives All Around!’

On April 21, 2021, in a further push to encourage COVID-19 vaccinations for those individuals who have been hesitant, the White House issued a fact sheet titled, “President Biden to Call on All Employers to Provide Paid Time Off for Employees to Get Vaccinated After Meeting Goal of 200 Million Shots in the First 100 Days.” This announcement further signals the administration’s dedication to vaccinating the U.S. population and its willingness to offer incentives to employers that support their employees in becoming vaccinated. Employers that have remained neutral on this issue could be persuaded to “take up arms” and join the fight against COVID-19.

Specifically, the fact sheet calls on employers “to offer full pay to their employees for any time off needed to get vaccinated and for any time it takes to recover from the after-effects of the vaccination.” To aid in this, the fact sheet announces a new tax credit for nonprofits and businesses with fewer than 500 employees. This tax credit is an extension and expansion of the tax credits initially provided by the Families First Coronavirus Response Act (FFCRA) in 2020 and that were subsequently extended until September 30, 2021, by the recent passage of the American Rescue Plan Act of 2021 (ARPA). The tax credit as amended by the ARPA allows qualifying businesses to recoup the costs of providing paid leave to employees who cannot work or telework as a result of “obtaining immunization related to COVID-19 or recovering from any injury, disability, illness, or condition related to such immunization,” in addition to the other qualifying reasons for emergency paid sick leave.

IRS Guidance on ARPA Tax Credits

Also on April 21, 2021, the Internal Revenue Service (IRS) issued a news release elaborating on the White House’s fact sheet. The IRS news release largely summarizes its earlier April 2021 guidance, which details the procedural aspects of the tax credit. As the IRS explained in its earlier guidance, the “refundable” tax credits under the ARPA provide an offset “against the employer’s share of the Medicare tax.” This means that “the employer is entitled to payment of the full amount of the credits if it exceeds the employer’s share of the Medicare tax.” The IRS guidance further explains:

The tax credit for paid sick leave wages is equal to the sick leave wages paid for COVID-19 related reasons for up to two weeks (80 hours), limited to $511 per day and $5,110 in the aggregate, at 100 percent of the employee’s regular rate of pay. The tax credit for paid family leave wages is equal to the family leave wages paid for up to twelve weeks, limited to $200 per day and $12,000 in the aggregate, at 2/3rds of the employee’s regular rate of pay. The amount of these tax credits is increased by allocable health plan expenses and contributions for certain collectively bargained benefits, as well as the employer’s share of social security and Medicare taxes paid on the wages (up to the respective daily and total caps).

According to the IRS guidance, to claim the tax credits, eligible employers must “report their total paid sick leave and family leave wages (plus the eligible health plan expenses and collectively bargained contributions and the eligible employer’s share of social security and Medicare taxes on the paid leave wages) for each quarter on their federal employment tax return, usually Form 941, Employer’s Quarterly Federal Tax Return.” The IRS guidance further provides:

In anticipation of claiming the credits on the Form 941, eligible employers can keep the federal employment taxes that they otherwise would have deposited, including federal income tax withheld from employees, the employees’ share of social security and Medicare taxes and the eligible employer’s share of social security and Medicare taxes with respect to all employees up to the amount of credit for which they are eligible.

For additional information, interested employers can review the Form 941 instructions.

Finally, the guidance states the following:

If an eligible employer does not have enough federal employment taxes set aside for deposit to cover amounts provided as paid sick and family leave wages (plus the eligible health plan expenses and collectively bargained contributions and the eligible employer’s share of social security and Medicare taxes on the paid leave wages), the eligible employer may request an advance of the credits by filing Form 7200, Advance Payment of Employer Credits Due to COVID-19. The eligible employer will account for the amounts received as an advance when it files its Form 941, Employer’s Quarterly Federal Tax Return, for the relevant quarter.

Key Takeaways

The expansion of qualifying reasons to provide paid sick leave and obtain tax credits is an important development for all eligible employers because it provides another tool for many employers seeking to incentivize employees to get vaccinated. Now employers are not fighting this incentive battle alone when trying to encourage employees to become vaccinated; the government is upping the ante to incentivize employers to provide further relief and rewards to employees for getting vaccinated.

Of course, there are numerous other ways that both eligible and ineligible employers can incentivize employees to get vaccinated, and there are both pros and cons to mandatory vaccination policies. While a thorough discussion of these issues is beyond the scope of this brief update, employers interested in learning more about the legal and practical considerations for implementing vaccination policies (whether mandatory for an entire workforce, mandatory for a subset of employees based on job duties and exposure risk, or completely voluntary), can review our articles on vaccination policies and vaccine passports.

© 2022, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.National Law Review, Volume XI, Number 120

About this Author

Michael K. Mahoney, Ogletree Deakins, employee benefits attorney

Mr. Mahoney is a member of the Employee Benefits and Executive Compensation group. He focuses on employment tax matters at both the federal and state levels, the review of labor and tax laws governing qualified plans, and the strategic design of executive compensation plans for a global workforce.

Mike advises employers on a multitude of fringe benefit issues including tax advantageous means of structuring such benefits. He routinely assists clients resolve payroll audits, working with federal and state authorities to reduce assessments on behalf of employers. In...

James, Jim, Paul, Litigator, EEOC, NLRB, DOJ, OSHA, Ogletree Deakins

Jim has extensive experience in handling labor and employment law litigation in federal and state courts, and before the Equal Employment Opportunity Commission, the National Labor Relations Board, the Department of Justice, the Occupational Safety and Health Administration, and several state agencies.  He also regularly advises employers on all labor and human resource management issues in an effort to prevent or resolve employee issues before they escalate into legal disputes.

Colin Hargreaves Employment Lawyer Ogletree Deakins Law Firm

Colin is an associate in the Minneapolis office of Ogletree Deakins. Colin graduated from the University of St. Thomas School of Law, where he earned Dean’s List honors several times and gained substantial hands-on litigation experience, including participating on one of the School’s Moot Court teams and arguing a motion before a Federal Bankruptcy Judge in one of the School’s Clinics. Colin received his undergraduate degree in Psychology from the University of Wisconsin—Stout.