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Families First Coronavirus Response Act and Guidance Department of Labor Issues Initial Q&A

On March 18, 2020, President Trump signed the Families First Coronavirus Response Act (“FFCRA” or “the Act”) into law, in response to the COVID-19 pandemic.

Late on March 23, 2020, the Department of Labor (“DOL”) issued its initial Q&A aimed at helping employers administer emergency paid sick leave and the emergency paid FMLA leave as part of the Act.

Employers may access the Q&A here:

Important Clarifications from the Q&As:

  • What is the effective date of the emergency paid sick leave and the emergency paid FMLA leave Act provisions?

The Q&A now specifies that the paid leave provisions will take effect on April 1, 2020, rather than April 2, as had been widely reported.

The paid sick leave and expanded family and medical leave requirements are not retroactive.

  • How private-sector employers determine if they are subject to the Act?

As we already knew, the law applies to a private-sector employer with 499 or fewer employees.  The Q&A provides guidance as to how and when an employer employs 499 or fewer employees.

An employer has fewer than 500 employees if, at the time your employee’s leave is to be taken, you employ fewer than 500 full-time and part-time employees within the United States, which includes any State of the United States, the District of Columbia, or any Territory or possession of the United States.

An employer MUST calculate its total head count each time an employee’s leave is to be taken.  This potentially creates an administrative nightmare for employers teetering near the 500-employee threshold.


In making this determination, the employer should include:

  • employees on leave;
  • temporary employees who are jointly employed by you and another employer (regardless of whether the jointly-employed employees are maintained on only your or another employer’s payroll); and
  • day laborers supplied by a temporary agency (regardless of whether you are the temporary agency or the client firm if there is a continuing employment relationship).

Workers who are independent contractors under the Fair Labor Standards Act (“FLSA”), rather than employees, are not considered employees for purposes of the 500-employee threshold.

  • How private-sector employers determine shared or common ownership and control?

Fair Labor Standards Act (“FLSA”) Joint Employers

Typically, a corporation (including its separate establishments or divisions) is a single employer and its employees must each be counted towards the 500-employee threshold.

Where a corporation has an ownership interest in another corporation, the two corporations are separate employers unless they are joint employers under the FLSA with respect to certain employees.

If two entities are found to be joint employers, all of their common employees must be counted in determining whether paid sick leave must be provided under the Emergency Paid Sick Leave Act and expanded family and medical leave must be provided under the Emergency Family and Medical Leave Expansion Act.

Family and Medical Leave Act of 1993 (“FMLA”) Integrated Employer Test

In general, two or more entities are separate employers unless they meet the integrated employer test under the FMLA.

Those factors under the FMLA include common management, interrelation between operations, centralized control of labor relations, and degree of common ownership/controlSee 29 CFR 825.104(c)(2).

If two entities are an integrated employer under the FMLA, then employees of all entities making up the integrated employer will be counted in determining employer coverage for purposes of expanded family and medical leave under the Emergency Family and Medical Leave Expansion Act.

Additional legislation and guidance are being issued on a daily basis to combat the COVID-19 epidemic.  This information is current as of the date it is issued; however, is subject to change due to legislative and regulatory action.

The content herein is provided for educational and informational purposes only and does not contain legal advice.  Please contact our office if you have any questions about compliance requirements applicable to your health and welfare plans due to COVID-19.

Dated:  March 26, 2020