Decoding the Family and Medical Leave Act: a look at employee thresholds and leave provisions

ARTICLE | May 26, 2023

It’s important for all employers to understand the nuances of the Family and Medical Leave Act (FMLA) and whether it applies to their business. The FMLA was enacted as a safeguard for employees during significant life events. It entitles qualifying employees to a maximum of 12 workweeks of unpaid leave annually, during which their job is protected, and it mandates the continuation of their group health benefits throughout the leave period. 

However, navigating the intricacies of the FMLA can be challenging. The Act has specific eligibility criteria that both employers and employees must meet, and its applicability varies based on factors such as the size of the employer, the duration of an employee’s service, and their working hours. 

FMLA eligibility criteria

To be eligible for leave under the FMLA, an employee must meet specific requirements related to their employment status, hours worked, and workplace location.

1. The employee must work for a covered employer. The FMLA applies to all public-sector employers and private-sector employers who have 50 or more employees. 
2. The employee must work for at least 12 months. These 12 months do not need to be consecutive, but in general, only employment within the past seven years is considered unless the break in service is due to military obligations or governed by a collective bargaining agreement. 
3. The employee must work for at least 1,250 hours. The employee must have logged at least 1,250 hours of work in the 12 months directly prior to the start of the leave. 
4. The employee must work at a qualifying location. The employee’s workplace must be situated in a location where the employer has 50 or more employees within a 75-mile radius. 

Employee thresholds

The FMLA applies to employers who, during the current or previous calendar year, have employed a workforce of 50 or more individuals for a minimum of 20 workweeks. To determine if a business is covered by the FMLA, it is essential to count all US employees and those in US territories. This count should include full-time, part-time, temporary, and seasonal, as well as employees on paid or unpaid leave who are expected to return.

The count should not include laid-off employees, volunteers, or employees working outside the United States. For larger employers with multiple locations, the 50-employee count should also consider whether employees work within 75 miles of each other. Therefore, employers with offices located more than 75 miles away from the main office or remote workers dispersed over a large area might not meet the FMLA criteria due to an insufficient number of employees within that radius unless the employer voluntarily opts to include them. 

Special circumstances

Small employers who do not meet the 50-employee threshold may still be held accountable for providing FMLA leave under certain circumstances. These include situations where the employer:

1. Appears to provide FMLA benefits as indicated by guidelines or policies in an employee handbook. 
2. Mistakenly assures an employee of their FMLA eligibility when they have not met service requirements.
3. Had 50 or more employees in the previous year, but the number of employees has since decreased. This can occur due to factors such as pandemic shutdowns or other business disruptions.

In these cases, the consequences of denying FMLA leave can be severe, ranging from lawsuits and fines to reputational damage. 

Types of FLMA leave and duration allowances

Under the FMLA, an employer subject to the Act is obligated to provide an eligible employee with up to 12 workweeks of unpaid leave, with job protection, within a 12-month timeframe for the following situations: 

• The birth of a child and the ensuing bonding time with the newborn.

• When a child is placed with the employee for adoption or foster care, followed by a period for bonding. 

• The need to care for a direct family member (spouse, child, or parent, excluding parents-in-law) who is suffering from a severe health condition.

• A medical leave necessitated by the employee’s own serious health condition renders them unable to work.

• Addressing qualifying exigencies that arise when the employee’s spouse, son, daughter, or parent is serving on active duty or has been called to active duty status as a member of the National Guard, Reserves, or Regular Armed Forces. 

Moreover, the FMLA permits qualifying employees to avail themselves of up to 26 workweeks of unpaid leave, with their job protected, within a single 12-month period for the purpose of caring for a covered servicemember who is dealing with a serious injury or illness. 

Employer responsibilities

To avoid inadvertently becoming a covered FMLA employer, you should:

1. Regularly review and update employee handbooks and policies to ensure they accurately reflect the organization's FMLA obligations. Tailor policies to specific locations if necessary.
2. Train human resources personnel and managers on FMLA eligibility requirements and compliance, including the importance of maintaining accurate employee counts.
3. Be cautious when communicating with employees about FMLA eligibility, ensuring that statements made do not create false expectations or promises.
4. Consult with legal counsel if there is uncertainty about your organization's FMLA obligations or potential compliance issues.

This article is intended to provide a brief overview of FMLA leave provisions and requirements. It is not a substitute for speaking with one of our expert advisors. For more information, please contact our office.