Please note that the content below was posted on March 26, 2020. We have since provided updated guidance on the topics discussed in this post here.

The Department of Labor has issued a Notice Poster outlining employees’ rights under the Families First Coronavirus Response Act’s (FFCRA). This poster must be displayed in a conspicuous place in a location visible to employees and is available for download on the DOL website.  Additional facts regarding posting requirements can be found here.

Both the FFCRA’s leave provisions (Paid Sick Leave and Emergency FMLA) apply to private employers with fewer than 500 employees.  The Department of Labor has issued a Questions and Answers resource addressing one of the FFCRA’s most lingering questions – which employees are counted for purposes of the 500 or less employee threshold?

The DOL states that employers should count all full-time and part-time employees working within any state of the United States, the District of Columbia, or any Territory or possession of the United States. Employees on leave, temporary employees and day laborers supplied by a temporary agency must also be considered.  Independent contractors are not to be included.

According to the FAQs, a corporation (including its separate establishments and division) will typically be considered a single employer and its employees must each be counted.  If one corporation has an ownership interest in another corporation, the two entities are separate employers unless they are considered joint employers under the FLSA. If the FLSA joint employment test is satisfied, the two corporations must aggregate their employees for purposes of determining whether they must provide paid sick leave and emergency FMLA.

In addition, the DOL has adopted the “integrated employer” test under the FMLA Regulations for determining whether two entities are separate employers. According to the FAQs, “integrated employers” are required to aggregate their employees for determining whether they must provide paid sick leave and Emergency FMLA.

If you have any questions regarding the information in this alert, please contact any of our labor and employment attorneys.