The Families First Coronavirus Response Act (FFCRA), the second of the three coronavirus stimulus packages passed by Congress in response to the ongoing pandemic, was enacted on March 18, 2020. During the period beginning on April 1 and ending on December 31, 2020, the FFCRA will require employers with fewer than 500 employees—but with a possible exemption for smaller businesses with fewer than 50 employees—to provide paid sick days and paid family and medical leave for workers if they have been impacted by the coronavirus.

The farmworkers who grow, pick, and pack the food that ends up on our grocery store shelves have been deemed essential workers during the coronavirus pandemic, but are vulnerable and need additional health and safety measures in place to protect them from being infected by, and spreading, the coronavirus. One major agribusiness lobby has publicly stated that farm employers “would be losing way too much money” if basic safety measures were implemented, while some major producers report they’re putting new safety measures in place. The current reality for farmworkers is that most lack paid sick days and paid family and medical leave—but if they qualify, the FFCRA could offer them a lifeline.

There are no reliable estimates of how many farmworkers may be eligible for the FFCRA’s emergency paid leave benefits, but our review of the available data sources suggests that almost all farmworkers could be eligible. However, if all smaller farm employers were to be exempted, just over one-third of farmworkers would be eligible.

Paid sick and family and medical leave under the Families First Coronavirus Response Act

Current federal law does not require U.S. employers to provide paid sick days to their employees. The Family and Medical Leave Act (FMLA) requires certain employers with 50 or more workers to provide up to 12 weeks of unpaid job-protected leave for specified family and medical reasons.

The FFCRA created a temporary federal paid sick leave requirement and expands FMLA coverage by requiring employers to pay eligible employees a share of their salary if they take leave for qualifying reasons related to the coronavirus pandemic. (For a detailed look at the benefits provided, see the fact sheet posted by the Center for Law and Social Policy and the Q and As and fact sheets posted on the U.S. Department of Labor (DOL)’s website.)

The new paid sick and family and medical leave benefits must be provided by all public- and private-sector employers with fewer than 500 employees, but the law includes a possible exemption for certain employers with fewer than 50 employees, allowing them not to provide paid leave if employees are taking leave to care for a child whose school or day care is closed, or because child care is unavailable, if it “would jeopardize the viability of the business as a going concern.” Half of farmworkers are parents of minor children, each with an average of two children under the age of 18 living in the household; since most schools and daycare centers are now closed, this could become an issue. Also, how the exemption is interpreted will matter:  DOL’s Wage and Hour Division is currently developing regulations to implement and enforce these provisions in the FFCRA, and its interim final regulations are expected sometime in early April. Presumably DOL will include guidelines regarding the small business exemption, and it’s possible that small businesses will be able to apply for it.

Most farmworkers would be eligible for paid leave benefits, but not if many small businesses are exempted

No one knows exactly how many farmworkers will be affected by the coronavirus directly and indirectly, but coverage under the FFCRA can be calculated by looking at the number of hired workers employed by agricultural businesses. There are three major data sources, but only one offers the level of detail needed to shed light on the number and share of farm employers and farmworkers who are covered by the FFCRA.

The Census of Agriculture (COA) is conducted every five years by the U.S. Department of Agriculture (USDA) and publishes data on farm employers who hire workers directly but does not provide data on workers brought to farms by nonfarm employers such as farm labor contractors. Some 513,100 U.S. farm employers reported hiring a total 2.4 million workers directly in 2017, including 35,500 farms that hired 10 or more workers directly. The COA does not publish data on how many employers employed more or fewer than 500 workers, limiting its utility to estimate the FFCRA’s impacts.

USDA’s Farm Labor Survey (FLS) conducts surveys of employers to obtain data on the workers they hire directly. In April 2019, when the total number of hired workers was 629,000, 71% were hired by employers with 50 or fewer workers, while 29% were hired by employers with more than 51 workers (see Table 1). In 2019, when employment peaked in July, the total number of hired workers was 802,000, and 63% were hired by employers with 50 or fewer workers, while 37% were hired by employers with more than 51. Like the COA, the FLS does not report the number or share of farms that employ fewer than 500 workers, also limiting its utility to estimate the FFCRA’s impacts.

The Quarterly Census of Employment and Wages (QCEW), published by the U.S. Bureau of Labor Statistics in DOL, reports data on directly hired workers and workers brought to farms by nonfarm employers such as labor contractors. Those data come from the information that employers provide to state unemployment insurance (UI) agencies when they pay the payroll taxes that support UI benefits. One major limitation of the QCEW data is that they cover only three-fourths of the estimated total average employment of 1.7 million in U.S. agriculture, because smaller farm employers in some states are not required to report to UI agencies and some employers are not required to count H-2A guestworkers as employees in their UI reports.

The QCEW reports employment by size of employer, but only for the entire United States (i.e., not by individual state) and only for the payroll period that includes the 12th of each month. Table 2 shows QCEW data for March 2019, which is useful because it corresponds to the same month the FFCRA was enacted. (One unfortunate limitation of the QCEW data however, is that employment levels by size of employer are reported only for the first quarter of every year. Considering that employment in crop agriculture is relatively low in most states in March—except in Arizona and Florida—and peaks in July, it is possible that farmworker employment patterns may differ during the peak months.)

Table 2 shows that the vast majority (99.8%) of the nearly 106,200 farm establishments in the United States that report to the UI system had fewer than 500 employees on their payrolls in March 2019, and these less-than-500-employee establishments hired 88.3% of all farmworkers who were reported to the UI system. A slightly smaller share of farms, 96.6%, had fewer than 50 employees, and they collectively hired 52% of all farmworkers.

These QCEW data suggest that the FFCRA could apply to nearly all agricultural employers that reported to UI agencies—and almost nine out of every 10 farmworkers in the United States could be covered by the paid leave requirements of the FFCRA.

However, DOL’s interpretation of the small business exemption in the FFCRA will ultimately determine the number of farmworkers who are able to access paid leave during the coronavirus pandemic. If all farm employers with fewer than 50 employees apply for and receive the exemption allowed by the FFCRA, then the FFRCA’s paid leave benefits would cover only 3.3% of farm employers and 36.2% of farmworkers—i.e., those employed by farms with between 50 and 499 employees.