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Employers covered by the FMLA
Covered employees
Many
visitors have asked us to address the issue of who is “covered” under the
Family and Medical Leave Act
(FMLA) and, in particular,
which employers must comply with the law and which employees are eligible to take leave under the
law.
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Employers covered by the FMLA.
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The
FMLA generally covers employers with 50 or more employees in 20 or more workweeks per year in the current or preceding calendar year. For example, an employer who was covered in year “A” continues to be covered during year “B” (the following calendar year) even if it fell below, and remained below, the 50 employees/20 workweeks threshold during the later part of year “A” and all of year “B.” Any employee whose name appears on the employer’s payroll, including part-time employees, is considered employed each working day of the calendar week and is counted even if he does not receive compensation for that week.
Note, in addition that all “public agencies” and public and private elementary and secondary schools are covered, without regard to the number of employees. A “public agency” is the U.S. government and its agencies; a state government (including the District of Columbia and U.S. territories and possessions), its political subdivisions, and its agencies; and any interstate governmental agency.
A corporation, rather than its separate divisions or locations, normally is considered a single employer under the
FMLA. When one corporation has an ownership interest in another, they will be considered separate employers for
FMLA purposes unless they meet either the “integrated employer” test or the “joint employer” test. In addition, some separate corporations with no common ownership will be considered “joint employers” of the same employee because they both exercise some control over the work and working conditions of the employee, as is common when workers are supplied by a staffing services firm.
(a) The integrated employer test. Under the “integrated employer” test, separate entities are considered to be parts of a single employer. No one factor determines inclusion. Instead, the total circumstances, and the following factors, are considered:
(1) common management;
(2) interrelated operations;
(3) centralized control over labor relations; and
(4) the degree of common ownership or financial control. When two or more entities are considered to be an
integrated employer, the employees of all entities that form the employer are counted in determining employer coverage and employee eligibility.
(b) The joint employer test. A “joint employer” situation may exist where two or more businesses exercise some control over the employee’s work or working conditions (such as occurs with temporary workers hired through a staffing services firm). When an employee’s work simultaneously benefits two or more employers, or the employee works for more than one employer at different times during the week, the arrangement usually is considered a joint employer relationship if:
(1) the employers have arranged to share an employee’s services or to interchange employees;
(2) one employer acts for the other employer in relationship to the employee; or
(3) the employers have some association related to the employee and are considered to share control of the employee because one employer controls, is controlled by, or is under common control with the other employer. The joint employer relationship is determined by a review of all the circumstances rather than by any one factor.
When organizations are considered joint employers, only the primary employer is responsible for giving notices concerning
FMLA leave, providing the leave, and maintaining health benefits. A joint employer will be viewed as the primary employer if it has the authority and responsibility to hire or fire, assign or place the employee, and provide pay and benefits. For example, a staffing services firm usually would be considered the primary employer of a temporary or leased employee. The primary employer is responsible for job restoration, and the secondary employer is responsible for accepting an employee returning from leave if the secondary employer continues its relationship with the placement agency and the agency chooses to return the employee to that job. This is required even if the secondary employer is not covered by the
FMLA.
A joint employee must be counted by both the primary and secondary employers for purposes of determining whether the employee is protected by the
FMLA and whether the employer is covered. This is true even if the employee appears on the payroll of only one of the employers. For example, an employer is covered by the
FMLA if it has 20 leased employees hired through an agency and 30 other regular employees.
Covered employees.
The FMLA defines an eligible employee as one who meets all three of the following criteria: (1) the employee has worked for the employer for at least 12 months (not necessarily consecutively); (2) the employee has worked for the employer for at least 1,250 hours in the previous consecutive 12-month period; and (3) the employee works at or is assigned to a worksite that has 50 or more employees or which is within 75 miles of worksites that taken together have a total of 50 or more employees.
Whether an employee has worked the minimum 1,250 hours is determined by counting the actual number of hours the employee has worked in the previous 12-month period. Therefore, paid vacations, holidays, and sick leave are not counted. In addition, eligibility is determined as of the date the leave will actually begin, not when the employee requests the leave.
For an employee who does not have a fixed worksite, such as a truck driver, construction worker, or sales representative, the location used to determine eligibility is the one which is considered the employee’s “home base,” i.e., the employer office or facility from which the employee’s work is assigned, or the location to which the employee reports.
Applying the coverage requirements. As a general rule, you should analyze coverage for employers and employees separately to determine whether the
FMLA applies to a particular situation. For example, even though your organization may be covered because it has over 50 employees (even if it has only one employee in each state), a particular employee may not qualify for coverage if he does not work at a worksite within 75 miles of 50 employees or has not worked enough hours for that employer to be eligible. In addition, you should check state leave laws since these may apply to employers that the
FMLA does not cover and may provide leave rights to new or part-time employees who are not eligible for
FMLA leave.
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