Employee Benefits

Legal Alert: What Employers are Subject to the Families First Coronavirus Response Act (FFCRA)?

March 31, 2020

Updated 04/01/20

Which Employers Are Subject To The Act?

The Families First Coronavirus Response Act (FFCRA) was signed into law on March 18, 2020. That law includes the new Emergency Paid Sick Leave Act (EPSL) and the Emergency Family and Medical Leave Expansion Act (EFMLA). The benefits and eligibility of those Acts are discussed in a separate document.

The effective date of FFCRA is April 1, 2020. Over the past week, the Department of Labor (DOL) has issued a series of Questions and Answers to explain how they plan to administer the new EPSL and EFMLA.

On March 31, the IRS issued the first of what will likely be a series of Questions and Answers on the FFCRA. These Q&As provide some detail on how to receive tax credits for providing EPSL and EFMLA plus substantiation needed from employees filing for claims and recording keeping needed by employers.

Which Employers Are Subject to EPSL and EFMLA?

Generally, private employers with fewer than 500 employees and public sector employers of any size are subject to these laws. Some employers with fewer than 50 employees may be exempt for the Act, see below.

Public sector employers include States, Cities, Municipalities, Townships, Counties, Parishes, the District of Columbia, a Territory or possession of the United States government, school districts, or similar entities. 

Most federal employees are not entitled to benefits under EFMLA, since the Act amended Title I of the FMLA and most federal employees are covered instead by Title II of the FMLA. 

Counting Employees

The 500-employee threshold is determined at the time your employee requests to take EPSL or EFMLA. If an employee files for leave on April 3rd, then the employer would look at the employee count on April 3. There is no averaging over the past 30 days, it is based on the employee count on the day that the employee requests leave. It is possible that an employer could have more than 500 employees on one day, fewer than 500 the next day, and then be back over the 500-employee threshold on the third day.

Both the EPSL and EFMLA use the employee definition provided in the Fair Labor Standards Act (FLSA). The employee count includes: 

  • Full-time and part-time employees working in the U.S. and its Territories.

  • Employees on leave.

  • Temporary employees who are jointly employed by two employers (regardless of whether the jointly employed employees are maintained on only one of the employer’s payroll).

  • Day laborers supplied by a temporary agency (regardless of whether it is the temporary agency or the client firm if there is a continuing employment relationship).

Independent contractors as defined under the FLSA, are not considered employees for purposes of the 500-employee threshold.

A corporation (including its separate establishments or divisions) is a single employer and all its employees are included in establishing the 500-employee threshold. If a corporation has an ownership interest in another corporation, the two corporations are separate employers unless they are joint employers under the FLSA.  If two entities are joint employers, all of their common employees must be counted in determining whether EPSL and EFMLA must be provided. 

If an employee performs work for an employer that also benefits another individual or entity, the FLSA has a four-factor balancing test to determine whether the employer is directly or indirectly controlling the employee: 

  1. Who hires or fires the employee;

  2. Who supervised and controls the employee’s work schedule or conditions of employment to a substantial degree;

  3. Who determines the employee’s rate and method of payment; and

  4. Who maintains the employee’s employment records.

Determining whether employers are joint or separate, is based on fact and circumstances tests as outlined by the FLSA. Employers who don’t know how they are categorized under the FMLA integrated employer rules or still have questions need to discuss these issues with their legal counsel. 

Small Employer Exemption

Small employers with fewer than 50 employees may be exempted from providing EPSL and EFMLA benefits if doing so would jeopardize the viability of the business as an ongoing concern. Small employers can claim an exemption if an authorized officer of the business has determined that:

  1. Providing EPSL or EFMLA benefits would result in the small business’s expenses and financial obligations exceeding business revenues and cause the business to cease operating at a minimal capacity;

  2. The absence of the employee or employees would entail a substantial risk to the financial health or operational capabilities of the small business because of their specialized skills, knowledge or the business or responsibilities; or

  3. There are not sufficient workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the labor or services provided by the employee or employees requesting EPSL or EMLA, and these labor or services are needed for the business to operate at a minimal capacity.

Healthcare Workers Are Exempted From EPSL and EFMLA Benefits

FFCRA also stated that employers could exclude healthcare providers and emergency responders from being able to receive leave under EPSL and EFMLA. 

A healthcare provider is anyone employed at any doctor’s office, hospital, healthcare center, clinic, post-secondary educational institution offering healthcare instruction, medical school, local health department or agency, nursing facility, retirement facility, nursing home, home healthcare provider, any facility that performs laboratory or medical testing, pharmacy or any similar institution employer or entity.  

This definition includes any individual employed by an entity that contracts with any of the above employers to provide services or to maintain the operation of the facility. Included in this list is anyone who provides medical services, produces medical products, or is otherwise involved in the making of COVID-19 related medical equipment, tests, drugs, vaccines, diagnostic vehicles, or treatments.  The list was not intended to be all inclusive. It also includes anything that the highest state or territory official determines to be a health care provider necessary to responding to COVID-19. 

An emergency responder is an employee necessary for the transport, care, healthcare, comfort, and nutrition of patients with COVID-19 or whose services are needed to limit the spread of COVID-19. The list includes but is not limited to military or national guard, law enforcement officers, correctional institution personnel, fire fighters, emergency medical services personnel, physicians, nurses, public health personnel, emergency medical technicians, paramedics, emergency management personnel, 911 operators, public works personnel, and persons with skills or training in operating specialized equipment or other skills needed to provide aid in a declared emergency as well as individuals who work for such facilities employing these individuals and whose work is necessary to maintain the operation of the facility.


Private-sector employers are eligible for reimbursement of the costs of EPSL and EFMLA leave through refundable tax credits. Only leave provided between April 1, 2020 and December 31, 2020 is eligible for the tax credits.

Eligible employers will substantiate eligibility for the sick leave and family leave credits if the employer receives a written request for such leave from the employee in which the employee provides:

  1. The employee's name;

  2. The date or dates for which leave is requested;

  3. A statement of the COVID-19 related reason the employee is requesting leave and written support for such reason; and

  4. A statement that the employee is unable to work, including by means of telework.

If the qualified leave wages exceed the employers share of social security tax owed for a quarter, the excess amount is refundable. Employers can file Form 7200, Advance Payment of Employer Credits Due to COVID-19 to receive a refund.

In the case of a leave request based on a quarantine order or self-quarantine advice, the employee should provide documentation regarding the name of governmental entity or healthcare professional advising the quarantine.

In the case of a leave request based on a school closing or child care provider unavailability, the statement should include the name and age of the child(ren) to be cared for, the name of the school that has closed or the name of the place of care that is unavailable, and some sort of documentation that they are closed. For child(ren) older than 14 during daylight hours, a statement explaining the special circumstances of why the child needs the employee to provide care.

Employers should keep all records of employment taxes for at least 4 years after the date the tax becomes due or is paid, whichever comes later.

We recommend that employers consult with their tax advisor and/or legal counsel for detailed questions regarding claiming the tax credits offered under FFCRA.

  • The DOLs Q&A document can be found on their website and here.

  • The IRSs Q&A document can be found on their website and here.


The information provided in this alert is not, is not intended to be, and shall not be construed to be, either the provision of legal advice or an offer to provide legal services, nor does it necessarily reflect the opinions of the agency, our lawyers or our clients.  This is not legal advice.  No client-lawyer relationship between you and our lawyers is or may be created by your use of this information.  Rather, the content is intended as a general overview of the subject matter covered. Those reading this alert are encouraged to seek direct counsel on legal questions.