HR Summer School: The Back-to-Basics Series. FMLA 101: Who Is Covered

HR Summer School is back again. We’ve finished two ADA courses, so it’s time for the FMLA.  This is the first of five FMLA “courses” in the HR Summer School series.  The course outline is attached for your reference. 

I. Covered Employers

The easy answer is that private employers with 50 or more employees are covered by the FMLA. Of course, there’s nothing easy about the FMLA, which is why there is a much more detailed explanation of this seemingly simple statement.

The FMLA covers private employers that have:

  • at least 50 employees;
  • for at least 20 weeks;
  • in the current or preceding calendar year.

A. “Employees”

So who actually counts as an “employee” for purposes of determining whether a business is covered by the FMLA?

  • Full- and part-time employees
  • Temporary employees, even if you don’t pay them.
  • Employee’s located at all work sites within 75 miles.
  • Employees with no regular office are assigned to the office to which they ordinarily report.
  • Employees “acquired” as part of the sale of a business.

The last type of employee applies only to “successor employers.” If you’ve acquired or taken over all or part of a business that was covered by the FMLA, you are considered a successor employer and may have to grant FMLA leave to certain employees even if the part of the business you’re operating has fewer than 50 workers. You must honor the leave request of any employee who had provided notice to the previous employers and you must follow the FMLA’s rules on maintaining benefits and reinstating employees who were on leave when you acquired the business.

B. Relevant Time Period

The FMLA covers only employers with 50 or more employees (as defined above). But what about employers who fluctuate just around 50 employees, or who had 50 employees but recently reduced staff? To determine the number of employees for FMLA purposes, employers can’t simply look to one specific date on the calendar, such as the first or last day of the year. A more complicated evaluation is required.

The FMLA applies, even if the employer does not currently have 50 employees, where the employer had 50 or more employees for at least 20 weeks in the current or preceding calendar year. This requires the employer to look at both years, week by week. Any week in which there were 50 or more employees on each working day (usually Monday through Friday), will count towards the 20-week minimum.


II. Covered Employees

Once an organization determines that it is covered by the FMLA and bound by its provisions, it will next need to determine whether the specific individual requesting leave is a covered employee.

To be eligible for FMLA leave, an employee must:

  • be employed by the employer for at least 12 months; and
  • work at least 1,250 hours in the 12 months before the leave would start.

The 12 months of employment do not have to be consecutive. And the 1,250 hour requirement must be satisfied by the time the employee would take the leave—not at the time the employee requests the leave.