FMLA or no FMLA if Less than 50 Employees? That is the Question!

The Family and Medical Leave Act (FMLA) entitles eligible employees of covered employers to take unpaid, job-protected leave for a specified family and medical reasons.

An eligible employee is one who:

  • Works for a covered employer
  • Has worked for the employer for at least 12 months
  • Has at least 1,250 hours of service for the employer during the 12 month period immediately preceding the leave and
  • Works at a location where the employer has at least 50 employees within 75 miles

Did you know?

Once an employer meets the requirements for FMLA coverage, the employer is a covered employer and will remain as long as it employs 50 or more employees in 20 or more workweeks in either the current calendar year or in the previous calendar year.

A scenario in the Private sector:

Let’s say, last year during its busy season from June 1st to October 31st, a restaurant had more than 50 employees on the payroll. In the current year, the same restaurant employs fewer than 50 employees. Are employees able to request FMLA this year if the employer has less than 50 employees in the current year?

Absolutely! Because the restaurant employed more than 50 employees for more than 20 workweeks in the previous year, the restaurant is considered to be covered at the time of the request and must offer the FMLA benefits and protections to its employee, if eligible.

Public agencies are covered employers under the FMLA, regardless of the number of employees they employ.

Elga Lejarza-Penn, aPHR, PHR, SPHR, SHRM-CP, SHRM-SCP

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