October 1, 2021 | Category: Compliance, FMLA, Leave

The Family Medical Leave Act (FMLA) provides eligible employees with up to twelve (12) weeks of unpaid, job-protected leave per twelve (12) month period. Despite FMLA being fairly well known, many businesses are still unsure if they must comply with the regulations. In simple terms FMLA applies to all public agencies, all public and private elementary and secondary school, and private companies with fifty (50) or more employees. Below is a more detailed explanation of FMLA applicability.

Private Sector. If you are a private sector employer, FMLA applies to you if you employ fifty (50) or more employees for twenty (20) or more workweeks in the current or previous calendar year. If an employee works any part of the week, they are considered to be employed each working day of the calendar week.

Employees that must be counted to determine FMLA applicability include:

  • any employee who works in the U.S., or any territory or possession of the U.S.;
  • an employee whose name appears on payroll records, whether or not any compensation is received for the workweek;
  • any employee on paid or unpaid leave as long as there is a reasonable expectation the employee will return to active employment;
  • employees of foreign firms operating in the U.S.; and
  • part-time, temporary, seasonal, and full-time employees.

Individuals that do not need to be counted to determine FMLA applicability include: employees with whom the employment relationship has ended, such as employees who have been laid off; unpaid volunteers who do not appear on payroll and do not meet the definition of employee; employees of U.S. firms stationed at worksites outside the U.S., its territories, or possessions; and, employees of foreign firms working outside the U.S.

Of note, if an employer meets the requirements for FMLA coverage, the employer will remain covered by FMLA as long as it employs fifty (50) employees for twenty (20) or more workweeks in either the current calendar year or previous calendar year. For example, a restaurant had more than fifty (50) employees on payroll from June 1st to October 31st of the previous year. During the current year though, the restaurant has fewer than fifty (50) employees and an employee is asking for FMLA leave. The restaurant is still required to provide FMLA since it employed more than fifty (50) employees for more than twenty (20) workweeks in the previous year.  

Public Agencies. FMLA also applies to public agencies. It does not matter the number of employees a public agency has, it must provide FMLA. The determination of whether an employer is a public agency and not a private employer, is whether the agency has taxing authority, or whether the chief administrative officer or board, etc., is elected by the voters-at-large or their appointment is subject to approval by an elected official.

Public agencies include: the federal government; the government of a state of political subdivision of a state and, an agency of the United States, a state, or a political subdivision, including counties, cities and towns, or any interstate governmental agency.

Federal Government. FMLA also applies to a limited number of federal employees. This includes employees of the USPS, Postal Regulatory Commission, FAA, and in certain circumstances the judicial branch of the United States.

Schools. Local educational agencies are also covered by FMLA regardless of the number of employees. Educational agencies include: public school boards; public elementary and secondary schools; and, private elementary and secondary schools.

Integrated Employers. Under the FMLA, a corporation is a single employer, which means that all employees of the corporation, at all locations, are counted for coverage purposes. Further, separate businesses may be part of a single employer for FMLA purposes, if they are an integrated employer. The employees of all entities that make up the integrated employer must be counted for the purposes of determining employer coverage under the FMLA.

Factors that are considered when determining if separate businesses are an integrated employer include: common management; interrelation between operations; centralized control of labor relations; and, degree of common ownership or financial control. 

Joint Employers. Businesses may be considered joint employers under the FMLA when two or more businesses exercise some control over the work or working conditions of an employee. For example, a temporary employment agency. When determining employer coverage under FMLA, employees jointly employed by two employers must be counted by both employers. This applies even if the employees are maintained on only one of the employer’s payrolls.

Generally, a joint employment relationship will be considered to exist where: there is an arrangement between employers to share an employee’s services or to interchange employees; one employer acts, directly or indirectly, in the interest of the other employment in relation to the employee; or, the employers are not completely disassociated with respect to the employee’s employment and may be deemed to share control of the employee, directly or indirectly, because one employer controls, is controlled by, or is under common control with the other employer.

Successor Employers. An employer may become a covered employer for FMLA purposes if it takes over the business operations, thereby becoming a successor in interest, of a covered employer. Factors that are considered when determining if an employer is a successor include: substantial continuity of the same business operations; use of the same plant; continuity of the work force; similarity of jobs and working conditions; similarity of supervisory personnel; similarity in machinery, equipment, and production methods; similarity of products or services; and, the ability of the predecessor to provide relief. If an employer is determined to be a successor in interest, employees’ entitlements under FMLA are the same as if the employment by predecessor and successor were continuous employment under a single employer.

At NAE, we provide comprehensive resources to our members to ensure compliance with all applicable employment laws, including FMLA. Our members are encouraged to reach out to our highly skilled and experienced staff who can help guide you through these difficult situations. NAE members can contact us at info@nevadaemployers.org or at (888) 398-8092 for assistance.