FMLA’s 50 employees — Employer coverage v. employee eligibility
The lawmakers who wrote the federal Family and Medical Leave Act (FMLA) thought a 50-employee threshold was a good one, as they used it twice — once for figuring out which private employers are covered by the law, and to determine which employees are eligible to take the leave.
Employer coverage
The law covers all public employers, such as a state government, regardless of how many employees they have.
The law also covers private employers if they have 50 or more employees in the U.S. The employees must have worked each working day during each of 20 or more calendar workweeks in the current or preceding calendar year.
This means that employers need to look at all company employees who work in the U.S. If, for example, an employer has five employees in Tennessee, 25 in Florida, and 35 in Nevada, it has more than 50 employees. Assuming at least 50 of those employees were on the payroll for at least 20 weeks during this year or last year, the employer would be subject to the FMLA.
Once an employer becomes covered, it remains so until it reaches a future point where it no longer has 50 employees for 20 weeks in the current and preceding calendar year. The 20 weeks need not be concurrent.
For example, if an employer met the 50/20 test as of November 1, 2022, but dropped to 45 employees before the end of 2022 and continued to have only 45 employees in all workweeks throughout 2023, the employer would continue to be covered throughout 2023 because it had met the criteria for 20 workweeks in 2022 — the preceding calendar year.
Employee eligibility
Employees must meet three criteria to be eligible to take FMLA leave:
- Worked for the employer for at least 12 months (need not be consecutive),
- Worked at least 1,250 hours in the 12 months before leave is to begin, and
- Work at a site with at least 50 company employees within 75 miles.
The last criterion is where employers look at how many employees are in a particular location. Some locations might, for example, have a collection of company buildings. The FMLA might consider these buildings as one location if they are close enough to each other.
In other situations, a building might house multiple companies. In that case, each company is a separate site of employment. There would need to be at least 50 company employees within 75 miles, not just 50 employees from all the companies combined.
Employers measure the 75 miles by surface miles, using surface transportation by the shortest route from the facility where the employee needing leave works. Absent available surface transportation between worksites, employers measure the distance by using the most frequently utilized mode of transportation (e.g., airline miles).
For employees who work from home, their personal homes are not worksites for this criterion. Rather, their worksite is the office to which they report and from where they get their assignments.
Key to remember: Don’t confuse the FMLA’s 50-employee threshold for employer coverage of the law with the 50-employee threshold for employee eligibility.
