COVID-19 & Your Business: Frequent Questions

Who is a covered employer for purposes of emergency paid sick leave and expanded family and medical leave under the FFCRA? (29 CFR 826.40)

The Department of Labor regulations explain that all private employers with fewer than 500 employees at the time an employee would take leave are considered to be “covered employers” under the FFCRA and must comply with EPSLA and the EFMLEA. The definition of “covered employer” under the EPSLA does not take into account a look back period or any type of averaging.

Based on the DOL’s regulations, employers should look to the number of full-time and part-time employees they have 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, at the time an employee’s leave under the FFCRA is to be taken to determine whether the employer is a “covered employer.” All full-time and part-time employees, employees on leave, temporary employees who are jointly employed by the employer and another employer, and day laborers supplied by a temporary placement agency should be counted as an employee in calculating the number of employees an employer has. Employers should not count independent contractors towards the 500-employee threshold, nor should employers count employees who have been laid off or furloughed and not subsequently reemployed.

Small employers with fewer than 50 employees may qualify for an exemption from the requirement to provide paid leave due to school, place of care, or child care provider closings or unavailability, if the leave payments would jeopardize the viability of their business as a going concern.

Last updated June 22

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