By: Jack Kline
When starting a small business, there are many questions that need to be answered. There are regulations to comply with, hiring requirements, and many other things running through your mind. There are some labor laws that only trigger if your business is of a certain size. One of the more notable of these, and the topic of our discussion here, is the Family Medical Leave Act (“FMLA”).
so, what is the fmla?
The FMLA is a federal labor law, enacted in 1993, that requires covered employers to provide protected, unpaid leave for qualifying reasons for its eligible employees. These employees are entitled to up to 12 weeks of unpaid leave each year. Further, the FMLA requires that their job is protected until they return, meaning that they cannot be fired simply for utilizing their allotted leave.
who is a covered employer?
There are three categories that a covered employer might fall under:
First, private-sector employers are considered covered for the purposes of the FMLA if and only if they employ 50 or more employees in 20 or more work weeks during the current or preceding calendar year.
Second, all public agencies are covered, regardless of the number of employees employed. This means that from the largest federal agency down to the smallest local government office, the FMLA act must be complied with.
Finally, local educational agencies (including school boards and public or private elementary and secondary schools) are covered as well. Similar to the waiver of the 50-employee requirement that public agencies receive, local educational agencies are not required to meet a minimum number of employees to provide the benefits of the FMLA.
who is an eligible employee?
An employee must meet three requirements to be considered eligible and thus, able to utilize the benefits of the FMLA.
First, an employee is required to have worked at least 1,250 hours during the 12 months prior to taking their leave under the FMLA. This works out to 25 hours per week over a 50-week period. In other words, part-time employees may be covered.
Second, the employee must be working at a location where the employer has 50 or more employees within 75 miles. This means that the protections of the FMLA apply even to a regional company that may have several small offices in a township, county, state, etc. Returning to the “covered employers” section, this second requirement is not applicable to public agencies or local educational agencies.
Finally, the employee must have worked for the employer for at least 12 months; however, the 12 months do not have to be consecutive.
eligible v. ineligible leave
Not all leave is created equal. As a result, the FMLA only covers eligible leave. So, what is the difference? Eligible leave covers serious familial and medical events. For instance, the birth of a child and bonding with them thereafter. Similarly, the placement of a child for adoption or for purposes of foster care. Serious health conditions, i.e., a condition that renders an employee unable to adequately perform their job duties, or care for a family member with a serious health condition. Regarding family members: when taking leave to care for a relative, the FMLA only applies to care provided to one’s spouse, parents, or child. Military caregiving leave is another eligible reason for leave and provides even greater protection than the standard FMLA provisions.
On the other hand, there are certain reasons for leave that are considered ineligible. For instance, having a mere cold or other minor illness, being in the middle of a move, vacations or travel, among other things.
how can eligible employees use the fmla?
The FMLA provides for two ways that an eligible employee can utilize their FMLA time. They can choose to use their time continuously, i.e., take the full 12 weeks at once. Or they can choose to use their time intermittently. Whether an employee uses their FMLA leave continuously or intermittently, both are limited by the same 12 weeks of eligible time in a singular 12-month period.
It is worth noting that as a covered employer, you cannot require that your employees take their time continuously. It is up to the eligible employee’s discretion as to how their FMLA leave is taken. When using intermittent leave, employees under the FMLA must make reasonable efforts to work with the employer, you, to schedule their leave in a way that does not unnecessarily disrupt business operations. Similarly, the employer must reasonably accommodate an employee’s intermittent leave.
small business exception to the fmla
Your business does not necessarily have to employee 50 people, in one location, to qualify as a covered employer. This exception applies to integrated and joint employers.
Integrated employers are employers with two or more businesses that share common management, intermixed operations, centralization of operations, or a degree of common financial control or ownership. These are employers that typically own multiple locations or branches. Joint employers are employers who use an employee sharing service. Think contract staffing.
If you qualify as a joint employer or an integrated employer, you might still have to offer the protections of the FMLA if the number of total employees adds up to more than 50.
This post has been reproduced and updated with the author’s permission. It was originally authored on May 7, 2024 and can be found here.
Sources:
Department of Labor, Fact Sheet #28F, dol.gov (May 7, 2024). https://www.dol.gov/agencies/whd/fact-sheets/28f-fmla-qualifying-reasons
OPEA, FMLA Graphic (Aug 9, 2023). https://opea.org/understanding-fmla/
