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FMLA-Less than 50 employees

My organization has 41 employees and as such is not obligated to grant any leave of absence under FMLA. However, in our employee handbook, we state that we will. Here is my question: If we say that we will grant leave under FMLA, can we limit what types of leave are eligible? Or policy only allows FMLA for a birth or serious illness. If an employee wants to take “military caregiver leave” under FMLA, can we refuse?

Your question raises several interesting issues, which we will address one at a time.

Are you sure your company only has 41 employees? Remember that under FMLA, any employee who is on the payroll for the week counts as an employee, even if he or she is suspended or on leave and works no hours that week. Also, part-time employees count as an employee. If you have 10 employees each working 4 hours per week, they count as 10 employees for FMLA purposes. If you have had 50 workers on the payroll for any 20 weeks this year or last year, you are required to offer FMLA. This is true, even if the 20 weeks were not consecutive. However, if you genuinely have only 41 employees, you are not required by law to offer FMLA in most cases.

By law employers are required to notify workers of their rights under FMLA. The two most common ways to do this are to display labor law posters and to include an FMLA notification in the employee handbook. The FMLA notification in the handbook does not necessarily entitle employees to this benefit. It may simply say something like: An employee of a company with 50 or more workers may qualify for up to 12 weeks of job-protected leave…blah, blah, blah.

If your handbook says *Employees of Our Company are entitled to 12 weeks of FMLA* then yes, in most states you must honor that until the policy is changed. However, most handbook notifications simply include the language in the FMLA law, even if the company is too small for it to apply.

If your company is not covered by FMLA, you can choose to offer another type of leave. Many smaller companies do offer unpaid medical leave to employees for childbirth or a serious health condition. There is no need to call this FMLA, and no need to extend it for other situations.

However, if you are genuinely offering FMLA to employees, then you probably do need to provide military caregiver FMLA as well as other types. By granting some employees FMLA, you may have created an entitlement for FMLA and you should consult an attorney before denying it to members of military families.

Some states have family leave laws that apply to smaller companies.


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This entry was posted on Thursday, November 4th, 2010 at 6:06 am and is filed under
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2 Responses to “FMLA-Less than 50 employees”

  1. Lois Says:

    We only have 10 employees and we do have a company policy that offers 12 weeks of unpaid maternity or medical leave per 12 month period. We also pay 100% of the employees medical insurance premiums, even when they are on maternity or medical leave. Can we change our policy to offer 16 weeks of unpaid maternity or medical leave? And if we do, will the employee still be eligible for our company medical insurance for weeks 13-16?
    Thank you,

  2. hrlady Says:

    Hi Lois,
    Since the FMLA doesn’t apply, you are within you’re rights to alter the maternity/medical leave policy as you wish. Whether an extended leave will allow for continued medical coverage for weeks 13-16 depends on the agreement with your insurance carrier.

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