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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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6 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.

  3. wayne Larsen Says:

    I have a employee that has been working for my company for about five months. He has taken off about four weeks for medical reasons. Is it legal to terminate his employment?
    I have a small company with 10 employees.
    Thanks Wayne

  4. hrlady Says:

    Hi Wayne,
    With only 10 employees you’re not required to comply with the FMLA or ADA. Though most state leave and discrimination laws usually don’t apply to small businesses, it’s still worth checking if your state has such laws. Assuming there is no state law or employment contract applicable and this is not a worker’s comp case, termination may be warranted. However, it’s advisable to discuss the situation with the employee first. Ask him if he expects to be able to return to work and, if so, when. If he says he’ll be back in two weeks then it’s best to hold his job until then. But, if his return date is unknown or he fails to return on an agreed upon date then termination may be justified. You want to be able show that you made legitimate attempts to accommodate the employee. Just remember, the termination reason is not because of his medical condition. It’s because he’s unable to show for work.

  5. Minnie Says:

    We are a small company with 13 employees, this is the first year that we are offering health insurance to our employees with a 50/50 split on premiums. I’m updating our employee handbook to include this benefit. My question is, if one of our employees takes unpaid leave of absence of 10 to 12 weeks for medical reasons is the company required to continue paying the premiums? Or does the employee pick up 100% of the cost until they return back to work? What is our obligation as a company?

  6. hrlady Says:

    Hi Minnie,
    With only 13 employees you’re not required to adhere to the federal Family & Medical Leave Act (FMLA). Still, many employers choose to follow the FMLA to ensure employees are treated fairly and equitably.
    During any FMLA leave, an employer must maintain the employee’s coverage under any group health plan under the same terms and conditions as coverage would have been provided if the employee had not taken leave. Any share of group health plan premiums that had been paid by the employee prior to FMLA leave must continue to be paid by the employee during the leave. Maintenance of health insurance policies that are not a part of the employer’s group health plan are the sole responsibility of the employee.
    If FMLA leave is substituted paid leave, the employee’s share of premiums must be paid by the method normally used during any paid leave, usually payroll deduction. If FMLA leave is unpaid, the employer must provide the employee with advance written notice of such and the terms and conditions under which these payments must be made.
    Keep in mind some states have similar leave laws with less eligibility criteria than the FMLA.
    Absent federal/state law on the matter, the continuation of healthcare benefits while an employee is on an employer-provided leave should be based on the language of the benefits plan. It’s common practice to provide for the continuation of coverage as normal as a benefit to employees. If healthcare benefits are not continued while on employee is on leave, an employee must be informed of his/her rights to continuation of coverage under COBRA.

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