Are Temporary Employees entitled to Paid Sick Days under FFCRA?

Many companies use temporary employees to supplement their workforce.  Employees remain the employee of the temporary staffing agency for a period of time, and the agency controls their overall employment.  During the pandemic, what happens if a temporary employee notifies your company that they have COVID-19 symptoms, or have had close contact with a person that tested positive for COVID-19?  Are they eligible for the paid days under the Families First Coronavirus Response Act (FFCRA)?

In most cases, the answer is no.  After a Tampa based construction client asked me the question this week, I located the FFCRA Frequently Asked Question (FAQ) #90 provides the answer.  If the temporary staffing agency has more than 500 employees, it is is not required to provide employees with paid sick leave or expanded family and medical leave.  The FFCRA does not cover companies with more than 500 employees.  However, if the business where the temp employee is working employs less than 500 employees, it is covered by the FFCRA and must provide those benefits.

Employers using temp employees are only required to offer FFCRA benefits if it is a joint employer.  If the second business directly or indirectly exercises significant control over the terms and conditions of the temporary work, then it is a joint employer and must provide FFCRA paid benefits.  If the second business does not directly or indirectly exercise such control, then it is not an employer and is not required to provide paid leave to a temp.  To determine whether the second employer exercises such control, the Department of Labor would consider whether it exercises 4 factors: (1) the power to hire or fire you, (2) supervises and controls your schedule or conditions of employment, (3) determines your rate and method of pay, and (4) maintains your employment records. The weight given to each factor depends on how it does or does not suggest control in a particular case.  So, in most cases, the temporary staffing agency will maintain the employment file, decide pay rate and methods of pay, supervise the overall delivery of services and has the ability to hire, fire and reassign temp employees.  Therefore, the secondary employer is not a joint employer and not required to pay FFCRA paid sick leave benefits (and would not be able to be reimbursed by the federal government for any benefits paid to the temp employee).

Although not covered by the FFCRA paid leave, both the temporary staffing agency and the second business are prohibited from discharging, disciplining, or discriminating against a person for taking such leave, even though it is not required to provide you with paid sick leave.

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