Unusual FFCRA Employees
As previously detailed, the Families First Coronavirus Response Act (FFCRA) requires private employers with less than 500 employees and public employers to provide paid sick leave and paid FMLA leave for certain COVID-19 related absences. The U.S. Department of Labor (DOL) recently issued guidance that highlighted two unusual circumstances that would provide leave coverage.
The first is for domestic service employees. If you employ a domestic worker (e.g., full-time nanny or gardener) who is economically dependent on you, they are entitled to FFCRA paid leave. Workers who are not economically dependent on you (e.g., day care provider with home business who has several clients) are not entitled to such leave. The DOL concludes that this is “complicated and fact-specific,” but gave us a rule of thumb – if you don’t have to file a Schedule H with the IRS for this worker, then they are not entitled to FFCRA leave. If you do, then more analysis needs to be performed to determine if they are economically dependent on you.
The second circumstance deals with temporary staffing agency employees where the staffing agency has more than 500 employees but the client doesn’t. In that instance, the staffing agency is not covered by the FFCRA. Nevertheless, the placed employee may still be entitled to FFCRA leave if the client is the employee’s “joint employer.” The client will be a joint employer when it directly or indirectly exercises significant control over the terms and conditions of the work. This occurs when it exercises the power to hire or fire, supervises and controls schedules or conditions of employment, determines rate and method of pay, and maintains employment records.
This can lead to tricky situations, such as when a temporary employee approaches the staffing agency for leave and is denied because the staffing agency is not a covered employer, and then the employee approaches the client for leave. Even assuming the client agrees that it is a joint employer – a decision with ramifications in other areas – it is unclear how the leave payments are to be handled. Presumably, as the employer of record, the agency is responsible for making the payments to the employee. Regardless, the placement agency needs to be careful in how it handles the leave request or it may become subject to a retaliation claim.
As we are seeing, nothing is easy in this new day and age.
Stay safe and keep the course. And please let us know if we can be of help.