To Act or Not to Act, That Is the Question

Anybody who has spent any time at all with the FMLA can appreciate that much of it has been written with about as much clarity as a play written in 1601, but we are here to break it down in our Back-to-Basics series (B2B).

As an employer, are you required to follow the Family and Medical Leave Act?  Are you sure about your answer? Let’s identify the three levels. The easy ones who are clearly covered, those who are clearly not covered, and then the details that make you triple check your workforce.  

Easy-peasy-lemon-squeezy group number one are those employers who clearly have 50 or more employees in the United States, regardless whether your employees are part-time or full-time.  You are a covered employer and must adhere to all requirements under the FMLA. Group number two are those employers who have never had 50 employees, at any time. Although you may be subject to state leaves, you can check the federal FMLA off your list of concerns.  

Where it gets messy is when your employee makeup isn’t quite so clean.  You need to keep in mind that any employee on payroll records counts. Let me ask you a couple questions.

  1. Do you have seasonal or temporary employees?  If yes, for how many weeks of the year do they work?

    1. If you have had 50 employees for ANY 20 workweek period, within the current or previous calendar year, you are a covered employer. The 20 workweeks do not have to be consecutive.
  2. Do you have employees on disability, leave of absence, or even suspension where you expect them to return to work?

    1. Even though these employees are not working, they are to be counted in your head-count.
  3. Do you have employees who work from home or are in any of the United States territories?

    1. Remember that the determining if you are a covered employer only requires the 50 employee headcount.  The 75-mile radius issue comes into play when we are talking about the employee eligibility.

I realize that we haven’t started to touch on joint employers, successors in interest, or public vs. private, so stay tuned.  

To sum it up for today, if you have met any of these requirements for even the minimum of 20 workweeks in a calendar year, then you are, in fact, a covered employer for that calendar year AND the following one.  Yes, you have to adhere to all of the employer responsibilities even at the stage where you do not have 50 employees.

It is true that parts of the FMLA may still leave you like Hamlet, rambling a soliloquy, in a room full of people, but we’ll keep bringing you B2B.  Unlike good ol’ Billy Shakespeare, we are here if you have questions.