Because the key employment components of the Families First Coronavirus Response Act (FFCRA) are tied into the FMLA and/or explicitly reference definitions of the FMLA, it is reasonable to expect that the FMLA regulations addressing whether employees from separate corporations should be aggregated when determining if an employer has 500 employees will apply. Under those regulations, there are two different ways multiple corporations will be aggregated for counting employees and determining whether they are covered: the “integrated employer” test and the “joint employer” test. In both tests, no single criteria is determinative and the will look to the full situation to make a decision.

Factors to determine if two or more entities are an integrated employer are:  1) common management; 2) interrelation between operations; 3) centralized control of labor relations; and 4) degree of common ownership/financial control.

Similar factors are used to determine whether multiple entities are joint employers. Importantly, joint employment does not require common ownership or financial control. The joint employment test typically looks to shared control of an employee or an employee who works in the interest of more than one employer. Agency and PEO arrangements are common examples of joint employment because the two companies share control of the employee.  It is important to note that in a joint employment situation, the primary employer will be responsible for notifications, providing leave, and similar issues. In a PEO situation, that likely will be the “client” employer (i.e., the facility).