Am I a Covered Employer Under the Updated FLMA

Last week, on March 18, 2020, President Trump signed the Families First Coronavirus Response Act (FFCRA) into law. The new bill expands employee coverage under the Family Medical Leave Act (FMLA) and provides Emergency Paid Sick Leave. Since the signing of the bill, the Department of Labor (DOL) has provided further interpretation and guidance for employers, which is now available on their website.

If you are unsure of your status as a “covered employer” be sure to continue reading and be sure to reference dol.gov for additional information.


Who is considered a covered employer?

Private Sector

  • Only if it employs 50+ employees*, in 20 or more workweeks in the current or previous calendar year.
  • Employees who must be counted include: part-time, temporary, seasonal, and full-time employees.
  • Employees who do NOT have to be counted include those who have been laid off, unpaid volunteers (so long as they do not appear on payroll), or those working outside the United States at foreign firms.

Public Agency

  • Covered under the FMLA, regardless of the number of employees they employ.
  • Public agencies include:
    • The federal government
    • The government of a state or political subdivision of a state
    • An agency of the United States, a state, or a political subdivision of a state, including counties, cities, and towns, or any interstate governmental agency
    • The term “state” includes any state within the United States, the District of Columbia, and any territory or possession of the United States.

Federal Government

  • United States Postal Service
  • Postal Regulatory Commission
  • Federal Aviation Administration
  • The judicial branch of the United States (in certain circumstances)

 

Schools

  • Public school boards
  • Public elementary and secondary schools
  • Private elementary and secondary schools

Integrated Employees

  • Corporations are classified as being a single employer under the FMLA. All employees of the corporation, its separate establishments, divisions, and its locations are counted for coverage purposes.
  • Classification of “Integrated Employee” is determined by the following factors:
    • Common management
    • Interrelation between operations
    • Centralized control of labor relations
    • Degree of common ownership or financial control.
    • For purposes of determining employer coverage under the FMLA, the employees of all entities making up the integrated employer must be counted.

Joint Employers

  • When two or more businesses manage control over the work or working conditions of an employee.
  • Example: a staffing agency that recruits and hires employees to be placed at different business client locations.
    • Even if the employee(s) is maintained by the staffing agency, the job site (business client location) is considered a joint employer under the FMLA.

Successor Employers

  • May be considered a covered employer if it takes over the business operations (i.e., becomes a “successor in interest”) of a covered employer.
  • Determination of a Successor Employer is based on the following factors:
    • Continuing the same business operations and providing similar products or services
    • Providing similar jobs and working conditions
    • Continuing to use the same workforce and supervisor structure
    • Using the same location and similar equipment and production methods.

 

Penalties for violators

The Department of Labor is enforcing its requirement to post the most current FMLA notices and is has approved digital posters as a way of satisfying this requirement (for those who have remote workers). Employers who willfully violate the posting requirement may be assessed a civil money penalty for each separate offense. Poster Compliance Center’s Virtual Compliance Guide is a great way to satisfy your legal obligation for posting notices.