- Ins and outs of 50 or more employees. FMLA applies topublic agencies, public and private elementary and secondary schools, and companies which have 50 employees or more for at least 20 weeks in the current or previous calendar year. For a small business with a fluctuating work force this calculation may not be completely straightforward. What if the company has averaged 50 employees but has experienced a few months with lower employment, does FMLA apply?
If a small business does not currently have 50 employees, the FMLA still applies if it did have have the requisite number for at least 20 weeks in the current or preceding calendar year. If the issue comes up, your small business may have to dust off last year's calendar and cross reference it with your payroll records to determine whether the company met the 50-minimum for each week. Then a quick tally of the "50 +/-" weeks will let you if you were above or below the magic 20 line mark, and thus, whether your company is bound by FMLA.
- Broad employee eligibility. FMLA covers both full and part-time workers, extending to temporary workers, and to employees working within 75 miles of the employer. To be eligible, employees must have worked 1250 hours, not including any unpaid or paid time off taken by the employee.
- Shades of grey in guaranteeing 12 weeks of job-protected, unpaid time off in 12 months. Eligible employees get up to 12 weeks of unpaid leave during a 12-month period. Small businesses have a few choice in deciding how to track the 12 months:
- use a 12-month calendar year;
- use any fixed 12-month time frame (i.e. fiscal year);
- count 12 months starting from when employee was first eligible for FMLA; or
- count backwards from when the employee began using FMLA.
- FMLA is federal law, your state may require more. While FMLA is federal legislation, California, Connecticut, Hawaii, Maine, Minnesota, New Jersey, Oregon, Rhode Island, Vermont, Washington, Wisconsin, and the District of Columbia feature similar state equivalents. Some state laws also provide unpaid leave to care for a same-sex partner or otherwise expand the rules or coverage. It is important for a small business to be aware of any parallel state law and how it affects, is affected, and interacts with FMLA.
Related Resources:
- Find Business and Commercial Lawyers Near You (FindLaw's Lawyer Directory)
- Federal vs. State Family and Medical Leave Laws (U.S. Department of Labor)
- HR Summer School: The Back-to-Basics Series. FMLA 101: Who Is Covered (Delaware Employment Law Blog)
- FMLA - Ten Questions You Should Know The Answers To (Labor and Employment Law Blog)
- Family and Medical Leave: Overview (FindLaw)
- Employer Retaliation (provided by Law Offices of Emanuel S Fish)
