We just hired our 50th employee, time for the FMLA!
Hiring is still robust, despite rumors of a slowdown. A client (not a public agency) recently began asking questions about an employee’s time off to bond with a new baby, because they recently hired their 50th employee.
The client wanted to make sure they were compliant under the Family and Medical Leave Act (FMLA) when administering the employee’s leave.
Becoming an FMLA covered employer
The moment the 50th employee is hired is not when a company becomes covered by the FMLA. In what appears to be a simple criterion for employer coverage can be fraught with questions. Here is how the FMLA regulations defines a covered employer:
A covered employer is any person engaged in commerce or in any industry or activity affecting commerce, who employs 50 or more employees for each working day during each of 20 or more calendar workweeks in the current or preceding calendar year.
Defining calendar workweeks
The calendar workweeks are not pay periods. The FMLA does not consider pay periods for this, only calendar workweeks.
Therefore, until the 50th employee has worked at least 20 workweeks (about 5 months), the company isn’t covered by the FMLA. This means that generally speaking the company doesn’t need to comply with the FMLA until this minimum timeframe has passed.
Public agencies
Again, this 50-employee rule doesn’t apply to public agencies, as those are covered employers no matter how many employees they have. One employee and they are immediately covered. This includes public as well as private elementary and secondary schools.
Employee eligibility
One of the questions the client had was whether they should begin counting an employee’s eligibility relative to when the employer became covered. The answer was no, the employee eligibility criteria is not determined based on when the employer became covered. Employees are eligible to take FMLA leave for a qualifying reason if they:
- Have worked at least 12 months for the employer (need not be consecutive and regardless of when the employer became covered);
- Have worked at least 1,250 hours in the 12 months before leave is to begin (again, regardless of when the employer became covered); and
- Works at a site with at least 50 company employees within 75 miles.
Therefore, if an employee who met this eligibility criteria wanted to take FMLA leave to bond with a baby that was born in January, and the company was covered by the law in December, the employee would be entitled to take the leave.
If the 50th employee hired had not worked at least 20 weeks before the company was covered, the employee who wanted bonding leave with the new baby would need to wait the 20 weeks until the company became covered.
Once an employer is covered by the law, the employer remains so until there are no longer 50 or more employees who have worked at least those 20 workweeks in the current or previous calendar year.
Key to remember: The moment an employer hires the 50th employee does not mean the company is immediately covered by the FMLA. That 50th employee needs to work at least 20 weeks before the employer is officially covered by the law.
