The answer to this question is critical. If the answer is “yes,” the employer must comply with the myriad of obligations imposed by the FMLA. The answer is “yes” if the employer has 50 or more employees in 20 or more workweeks in the current or preceding calendar year.
The determination of whether an organization meets this 50-employee requirement is not an easy one, though, especially for employers with a high turn-over rate and employers who utilize temporary or seasonal help. Here’s a short breakdown of the analysis to help you determine if your organization is a “covered employer” for purposes of the FMLA.
- Start with the correct time period. You should look to the payroll records of the current and preceding calendar year. (For example, if we were to perform the calculation today, we would need to look at the records for 2008 and 2009).
- For this period, determine how many employees the organization had who were employed for a total of 20 or more weeks. The week is based on a calendar workweek. Workweeks need not be consecutive.
- From this number, remove employees who were subject to layoff, whether temporary, indefinite, or long-term.
- Do not remove an employee who was on leave of absence or suspension but who has a reasonable expectation of returning to active employment.
- Remove any employee working at a location outside of 75 miles from the location for which the determination is being made.
Once a private employer satisfies the 50-employee and 20-week threshold, the employer remains covered until it no longer has 50 employees during 20 workweeks in both the current and preceding calendar years.
 Joint employers and successors in interest of covered employers, public agencies, and private elementary and secondary schools are also covered.
See other posts on the FMLA’s requirements and prohibitions: