Which employers are affected by the FMLA?

Employers in private industry with 50 or more employees (in either the current or preceding year) are subject to the FMLA. Public agencies, including schools, are also subject to the FMLA regardless of their number of employees.

Note Although all employees are counted for purposes of determining whether an employer employs 50 or more persons, not all of these employees are necessarily eligible for leave benefits. Only eligible employees are entitled to leave under the FMLA.

Private employers

To come under FMLA, an employer must have employed 50 or more employees for each working day during each of 20 or more calendar work weeks in the current or preceding calendar year.

In general, the legal entity that employs the employee is considered to be the employer under the FMLA. For example, a corporation is a single employer, it is not split into its separate establishments or divisions. A parent company is a separate employer from its subsidiary. However, separate entities are deemed to be parts of a single employer.

CAUTION: Company managers are individually liable for any violations of the FMLA.

How are employees counted? All individuals maintained on the payroll are considered employed each working day of the calendar week. This means that part-time employees are counted. Employees on paid or unpaid leave are also counted, as long as the employer reasonably expects that the employee will return to active employment.

What about temporary and leased employees? Temporary and leased employees are counted as employees of both the leasing agency and the lessee (i.e., the employer for whom the employee is working). However, only the primary employer (usually the leasing agent, rather than the lessee) is responsible for giving the required FMLA notices, providing leave, maintaining health benefits, and guaranteeing job restoration.

The lessee cannot interfere with, restrain, or deny an employee's exercise (or an attempt to exercise) of any right granted under the FMLA.

Government employees

Included in the definition of employer for FMLA purposes is any public agency. This includes U.S Government, state and local governments, and governmental agencies. All public agencies are covered by the FMLA regardless of the number of employees. However, in order to be eligible, employees of public agencies must still meet the requirements that the agency (e.g. State) employ 50 or more employees at the worksite or within a 75-mile radius.

Is there an exception for local educational agencies? A local educational agency or school and a private elementary or secondary school are considered employers that must provide leave under FMLA to eligible employees. There is no exemption under the FMLA for schools or educational agencies based on the number of employees. However, the special nature of the schedule for these employees makes it necessary to allow employers to place certain restrictions on intermittent leaves or reduced leave schedule requests for these employees.

Reprinted with permission. © CCH