Is Your Business Making These Common FMLA Mistakes?

Many employers are intimately familiar with the federal Family Medical Leave Act (FMLA), which requires up to 12 workweeks of job-protected leave for qualified employees of covered employers. The FMLA was enacted more than 30 years ago, yet some aspects of this frequently used leave can trip up well-intentioned and experienced employers. Here we discuss three common FMLA-related mistakes we encounter as business advisors.

“Our business currently has less than 50 employees. Does the FMLA apply to us?”

Maybe — depending on your headcount during a look-back period, not just your current headcount.

A common misunderstanding of the FMLA is that its 50-employee standard is based on the company’s current headcount. However, an employer is covered if it had 50 or more U.S. employees for at least 20 calendar weeks during either the current or previous calendar year. These 20 weeks need not be consecutive and all employees on payroll are counted. Moreover, once an employer has reached the 50 employee/20 weeks threshold, it continues to be covered until it has not employed at least 50 employees in 20 weeks in the current and previous calendar year.

Additionally, if an employer is an integrated or joint employer with other entities, or a “successor in interest” to an FMLA-covered employer, they may be covered by the FMLA. Each of these types of employment is determined by its own test. We most commonly see confusion after a merger or acquisition, where the successor in interest label might be triggered. In essence, if your company acquires an FMLA-covered company, your company may need to comply with the FMLA for a period of time, even if your headcount never reaches 50 employees. Moreover, the employees’ tenure with their previous employer must be counted in some circumstances when determining employee FMLA eligibility.

“Our business has 100 employees. Seventy employees work at our company’s only physical location, while the other 30 work remotely. Some remote employees work within 75 miles, while others do not. Are our remote employees entitled to FMLA leave?”

Let’s start with the easy part of this hypothetical scenario: Employees who work at the company’s only physical location and are otherwise FMLA eligible are entitled to FMLA leave for qualifying reasons.

Remote employees in this scenario are also entitled to FMLA leave, even if they are more than 75 miles away, if they are assigned work from, or otherwise report to, the sole physical location (and are otherwise eligible for FMLA leave). This one trips up many employers now that remote work is so prevalent. One of the requirements for an employee to be eligible for FMLA leave is that the employee’s worksite hosts at least 50 employees or that there are at least 50 employees within 75 miles of that worksite. Oftentimes, employers believe that remote employees who do not work within 75 miles of a company facility are not counted for eligibility and would not qualify for FMLA leave. This thinking, while reasonable at first glance, may be incorrect.

The FMLA regulations state that remote employees are counted at the worksite from which the employee is assigned their work, where the employer considers the employee’s home base to be, or where the employee reports for work. This is often — but not always — the location where the employee’s supervisor works. The U.S. Department of Labor (DOL) published informal guidance last year addressing telework, in which it reinforced that for FMLA eligibility purposes, the employee’s personal residence is not a worksite — even for hybrid or fully remote workers.

In our example above, the employer may have thought that at least some of their remote workers are not covered if they do not work within 75 miles of the company’s physical location. However, if a remote employee’s worksite for FMLA purposes is that physical location, they are eligible for FMLA leave if they meet all other eligibility requirements. The inquiry can become more complicated than our example above, such as where remote workers receive work assignments from multiple offices or other remote workers. In its telework guidance, the DOL concluded that “the determination of the worksite for an employee who teleworks is fact specific and will be based on factors such as where the employee reports to work or the location where the employee’s assignments are made.”

“We are an FMLA-covered employer. We have an employee who worked for us for three years, then left us for two years, and now returned to us eight months ago. They are now requesting FMLA leave. Are they eligible for FMLA leave even though they have not worked with us 12 months since their rehire?”

Yes, if they have worked 1,250 hours in the 12 months prior to their request for leave and work at an FMLA-covered site. Employers commonly misunderstand how the FMLA treats an employee’s tenure at their business. The FMLA requires that an employee works for their employer for at least 12 months and has worked 1,250 work hours during the 12-month period immediately preceding their leave. However, in determining whether the employee has been employed for 12 months, we look back up to seven years (and occasionally even longer). These 12 months need not have been worked consecutively. In the scenario here, the employee worked for their employer for three years or 36 months. They then left their employer for two years and returned to work eight months ago. Even without the eight months back at work, the employee met the 12-month eligibility requirement because they worked for three years prior to leaving their job, and those three years were within the past seven years. To be eligible, however, they still need to have worked at least 1,250 hours during the 12-month period preceding their leave.

“What does this all mean for my business?”

Even after more than 30 years, FMLA compliance can be quite tricky. Noncompliance can lead to significant damages in court, including payment of an employee’s lost wages. If you have any questions regarding FMLA leave issues, please consult your Fredrikson Employment, Labor & Benefits attorney.