Farm Workers and Paid Sick Leave

April 9, 2020

The Families First Coronavirus Response Act (HR 6201) requires private-sector employers with fewer than 500 employees to provide their employees with up to two weeks of fully or partially paid sick leave for COVID-19 related reasons between April 1 and December 31, 2020. DOL, which administers the FFCRA, can exempt employers with fewer than 50 employees if an employer believes that paid leave benefits would jeopardize the viability of the business.

The Family and Medical Leave Act (FMLA) of 1993 requires employers with 50 or more workers to provide up to 12 weeks of unpaid sick leave to employees after the birth of a child, to recover from a serious illness, or to care for someone with a serious illness. Employees must have worked at least 1,250 hours for the employer in the previous 12 months to qualify for this unpaid leave, and can return to their old jobs at the end of the leave.

The FFCRA makes full-time employees who have been employed at least 30 days and are subject to quarantine orders due to COVID-19, who have been advised to self-quarantine by a health care provider, or who are experiencing COVID-19 symptoms and are seeking a diagnosis, eligible for 80 hours of paid sick leave at their regular wage, up to $511 a day or $5,110 in total. No waiting period is required, and H-2A farm workers are eligible as well as authorized and unauthorized workers.

Employees are eligible for two-thirds of their regular pay, up to $200 a day or $2,000 total, if they cannot work because they must care for someone with COVID-19 or a child under 18 whose child care facility or school is closed due to COVID-19. Part-time employees are eligible for the number of hours of paid sick leave that they would normally work in a two-week period.

Employer-paid sick leave under the FFCRA is not subject to the 6.2 percent employer social security tax. Employers will receive credits for their COVID-19 sick-leave payments against their payroll taxes owed. For example, if the employer owes $10,000 in federal social security taxes but paid $7,000 for employee sick leave, the employer would owe only $3,000 in social security taxes.

The FMLA requires certain employers with 50 or more workers to provide up to 12 weeks of unpaid leave for specified family and medical reasons, including the birth of a child or to care for a family member with a serious health condition, with the right to return to the employee’s previous job at the end of the leave. Workers employed by firms with less than 500 employees may use their 12 weeks of FMLA leave for COVID-19 concerns.

The FFCRA expands FMLA coverage by requiring employers to pay eligible employees two-thirds of their regular pay, up to $200 per day with a maximum benefit of $10,000. DOL may exempt employers with fewer than 50 employees if these leave requirements would jeopardize the viability of the business.

Eligible employees must have been employed for at least 30 days prior to requesting the leave, and must show that they cannot work because they have to care for their child due to the closure of a child care facility or K-12 school, or because a child care provider is unavailable due to coronavirus concerns.

How many farm employers and farm workers will be affected by FFCRA paid leave requirements? The FFCRA requires employers to determine their employment at the time an employee requests paid leave, counting both full- and part-time employees and employees brought to farms by labor contractors.

The Census of Agriculture (COA) publishes data on farm employers who hired 10 or more workers directly. Some 513,100 US farm employers reported that they hired 2.4 million workers directly in 2017, including 35,500 that hired 10 or more workers. The COA does not provide data on employers who hire more and fewer than 500 workers, nor on workers brought to farms by nonfarm employers such as farm labor contractors.

COA 10-or more employee farms hired a total of 1.3 million workers or 52 percent of all workers hired directly by farmers. Some 30,400 California farm operators hired 377,600 million workers directly in 2017, including 6,400 that each hired 10 or more workers directly; their 308,600 workers were 82 percent of the total.

USDA’s Agricultural Labor Survey reports on hired workers who are employed directly by farmers. In July 2019, when the total number of hired workers was 802,000, some 63 percent were hired by employers with 50 or fewer workers.

The Quarterly Census of Employment and Wages (QCEW) collects data on directly hired workers and workers brought to farms by nonfarm employers such as labor contractors, but covers only three-fourths of the estimated average employment in US agriculture of 1.7 million. Smaller farm employers and H-2A workers in some states are exempt from state UI taxes and employment reporting.

The QCEW reports employers by their number of employees, but only for the US and for the payroll period that includes the 12th of the month for January, February, and March, when employment in crop agriculture is near the low for the year except in Arizona and Florida.

Over 99 percent of the 106,000 US farm establishments in the UI system hired fewer than 500 employees in March 2018, and these less-than-500 employee establishments hired 89 percent of all UI-covered farm workers. Over 96 percent of establishments hired fewer than 50 employees in March 2018, and they collectively hired 52 percent of covered agricultural employees.

These UI data suggest that almost all agricultural employers, and almost 90 percent of UI-covered farm workers, could be covered by FFRCA’s paid-leave provisions.

The Secretary of Labor may exempt employers with fewer than 50 employees from the paid leave requirements to care for children if paid leave would “jeopardize the viability of the business as a going concern.” The FFRCA instructed DOL to consider whether providing paid leave to a worker to care for family members would “cause the small business to cease operating,” pose “a substantial risk” to the company, or leave the business with too few “able, willing and qualified” workers to fill in for the person seeking leave.

If most farm employers with fewer than 50 employees apply for and receive an exemption from the paid leave for child care program, FFRCA paid leave benefits will affect three percent of farm establishments and 36 percent of farm workers, that is, those with 50 to 500 employees. However, sick employees will be able to obtain paid leave for themselves.

DOL’s Wage and Hour Division is enforcing the COVID-19 sick pay regulations.

Farms that hired 10 or more workers accounted for 60% (US) to 80% (CA) of all workers hired directly by farms in the 2017 COA<

Source: DOL’s Wage and Hour Division is enforcing the COVID-19 sick pay regulations.

The USDA NASS ALS reported that 63 percent of directly hired workers were on US farms with 50 or fewer workers in July 2019

US agricultural establishments with less than 50 employees in March 2018 hired two-thirds of the 1.1 million US farm workers

Source: DOL’s Wage and Hour Division is enforcing the COVID-19 sick pay regulations.

Some 106,000 US agricultural establishments hired 1.1 million workers during the payroll period that includes March 12, 2018

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