What about ME? The plight of the 500+ employer group

At Matrix and Reliance Standard we receive questions about COVID-19-related issues daily – no, hourly. Since the passage of the Families First Coronavirus Response Act (FFCRA), many of these questions have revolved around a big  issue for big(ger) employers: What about companies that have 500 or more employees? These larger employers are not covered by the Emergency Paid Sick Leave Act (EPSL) or Emergency Family and Medical Leave Expansion Act (EFML) provisions of FFCRA. So what does apply and what can/should a large employer do?

Let’s take on that topic now. 

My company has more than 500 employees. Does the “regular” FMLA apply to COVID-19?

Yes! The regular FMLA may come into play if an employee or employee’s family member is experiencing COVID-19 symptoms. BUT, the individual’s medical condition still must meet one of the FMLA definitions “serious health condition.” A COVID-19 diagnosis, in and of itself, does not do this. Some individuals who have COVID-19 are asymptomatic or have very mild symptoms that will not rise to the level of a serious health condition.

Two specific definitions of serious health condition may be applicable here (29 C.F.R. §§ 113-115):

• Inpatient care (an overnight stay in a hospital, hospice, or residential medical care facility plus
  any subsequent period of incapacity or treatment); or
• Incapacity of more than 3 consecutive, full calendar days, that also involves 2 or more in-person
  treatments by a health care provider or 1 in-person treatment followed by a regimen of
  continuing care.

The FFCRA made no changes whatsoever to the rules and procedures for regular FMLA claims. Despite the difficulty in getting an in-person medical appointment, an employer may still require in-person treatment by a health care provider and a written certification. Employers do have the ability to waive this requirement and accept a certification following a telemedicine appointment or waive the certification requirement altogether. Employers should consult with their legal counsel on whether, in that case, the employer should take the same approach to certification requirements for all serious health conditions, not just COVID-19 claims. Maybe this makes sense, as employees will have an even tougher time get an appointment and medical certification for non-coronavirus health conditions.

All other regular FMLA rules also continue to apply, including employee eligibility, total 12-week entitlement, required employer and employee notices, and so on.

Employers need to approach this decision with eyes wide open. If an employer with 500 or more employees elects to provide the EPSL and/or EFML benefits to its employees, there are two key things to understand:

1. EFMLA is available when an employee’s child’s school or daycare has closed, or a day care
   provider is unavailable, due to COVID-19. This leave counts toward an employee’s 12-week
   FMLA entitlement per 12-month period. For employers with 500+ employees, any time
   taken by an employee that fits the parameters of EFMLA is not FMLA leave and cannot be
   counted toward the employee’s 12 weeks of FMLA. Doing so could be considered
   interference with the employee’s FMLA rights by charging the employee’s FMLA bank
   with leave that is not covered by the FMLA or EFML.
2. Paid leave provided to non-covered employees for EPSL or EFML reasons will not qualify for
   the 100% tax credit available for wage and related payments made pursuant to the acts.

With those two factors in mind, employers with 500 or more employees can certainly offer the same type of benefits to its employees as a new company policy or benefit. And, any employer can allow (but often cannot require!) employees to use existing company-paid sick leave, PTO, and other paid leave benefits for COVID-19-related reasons not normally covered, such as quarantines or school closures.

My Company has more than 500 employees. Do we need to post notice of the EPSL and EFML?

No. You are not a covered employer so no need to put up the DOL-approved poster (available here in several languages for those who DO need to post or share electronically!). In fact, posting the notice if your company is not covered might just add confusion to an already confusing situation for employees.

My business is made up of multiple companies, some over and some under 500 employees. Should we provide EPSL and EFML benefits to ALL employees?

The previous question provides the answer here: be aware of the two key factors in making your decision. But there is an additional consideration: If you provide EFML benefits to the employees of the 500+ companies you are in effect giving those employees greater benefits than the employees of smaller companies. That’s because, for the employees of the larger companies, the paid time off cannot count toward the employee’s FMLA 12-week entitlement, but such usage for an employee of a smaller company does count toward FMLA. So the employees of the larger companies may be able to take more leave in a 12-month period, paid or unpaid, than employees of the smaller companies. Be ready for employee dissatisfaction with perceived inequities in benefits among the companies!

My company has ABOUT 500 employees, depending on the day. Should we provide EPSL and EFML benefits to our employees regardless of each day’s headcount?

Whether an employer has fewer than 500 employees is determined as of the first day of leave of EACH employee requesting leave. That means, for example, that an employer with 510 employees today does not have to grant leaves that will start today; but a week later, if the employee headcount drops to 495, the employer does have to grant leaves requested to start that day. (This may include leave for the employees denied today.)

In light of this moving target it may be tempting to simply grant the paid leave for all employees regardless of a specific day’s employee count. But any EPSL or EFML benefits provided while the company has 500 or more employees on the leave start date won’t count toward the employer’s paid leave obligations to an employee for the leaves that ARE covered, won’t qualify for the tax credits, and can’t be counted toward the employee’s FMLA entitlement. Feeling like a broken record here, but there are so many permutations on that 500 rule!

My business is made up of several related entities. Should we provide EPSL and EFML benefits to our employees?

Generally, each legal entity, such as a corporation, is a separate employer for purposes of counting employees for EFMLA (and FMLA) coverage. However, in some cases related entities may constitute a single employer and therefore all employees of the related entities are counted to determine the under/over 500 count.

Here is guidance from the FMLA regulations, which are incorporated into the EFML regulations:

A corporation is a single employer rather than its separate establishments or divisions. Where one corporation has an ownership interest in another corporation, it is a separate employer unless it meets the “integrated employer” test. Where this test is met, the employees of all entities making up the integrated employer will be counted in determining employer coverage and employee eligibility. A determination of whether or not separate entities are an integrated employer is not determined by the application of any single criterion, but rather the entire relationship is to be reviewed in its totality. Factors considered in determining whether two or more entities are an integrated employer include:

(i) Common management;

(ii) Interrelation between operations;

(iii) Centralized control of labor relations; and

(iv) Degree of common ownership/financial control.

(29 C.F.R. §§ 825.104 and § 826.40)

This assessment is important because, if your company is part of an integrated employer with a total of 500 or more employees, any benefits provided cannot be counted toward an employee’s FMLA usage and won’t qualify for tax credits, as discussed above. On the other hand, if your under-500 corporate entity is affiliated with other companies but does not satisfy the integrated employer test you may be covered by FFCRA without realizing it.

SAFE BET: If you have questions about whether your company is part of an integrated employer, consult your legal counsel. The determination depends on a legal analysis your company’s specific facts and circumstances.

My company usually has more than 500 employees, but we have had to furlough hundreds and now have fewer than 500 active employees. Are we covered by FFCRA?

Yes. Those remaining active employees are entitled to EPSL or EFML paid benefits and job-protected leave. Employees on furlough or laid off are not counted toward the company’s number of employees. Likewise, they are not entitled to FFCRA benefits. However, furloughed or laid off employees may be entitled to unemployment benefits, which vary from state to state.

My company has more than 500 employees. Are there any other COVID-19-related laws we need to comply with?

Yes. Specifically, New York passed a law, effective March 18, 2020, which provides paid leave to employees of all employers when the employee or a minor dependent child is subject to an order of quarantine or isolation. The type and amount of paid benefits available to employees depends on employer size. Employers with 100 or more employees must provide 14 calendar days of paid leave due to an employee or minor child quarantine (that is, pay for the number of days the employee would normally work in a 14-day period). For details on the New York law, check out our New York FAQs and our webinar presentation  and recording.

In states with paid family leave and/or paid disability benefits, many changes have been made to afford benefits to employees for COVID19-related leaves. These too are covered in our recent COVID-19 webinar.