Whether FMLA Reaches Your Shop, and What It Obliges

Why this matters

Most shops in this library's audience are not covered by the Family and Medical Leave Act, and almost none know it for certain. That uncertainty costs two ways: an owner grants leave he thinks the law requires and cannot take it back when it becomes a problem, or he refuses leave believing he is exempt when a state programme reaching employers a fraction of his size says otherwise. Both mistakes come from never having done the counting, which takes about twenty minutes once.

This is orientation rather than legal advice. The one place below where a shop should not decide alone is marked.

Two tests, and both have to be met

The FMLA has a coverage test about the employer and an eligibility test about the employee, and they are genuinely separate. A covered employer can have ineligible employees. An eligible-looking employee at an uncovered employer has nothing. Shops get this wrong by running one test, getting an answer, and stopping.

The employer test (29 U.S.C. 2611(4)(A)(i)): 50 or more employees for each working day during each of 20 or more calendar workweeks in the current or preceding calendar year.

The employee test (29 U.S.C. 2611(2)), all three of which must hold:

• 12 months of employment with this employer, which need not be consecutive.
• At least 1,250 hours of service during the 12 months immediately before the leave starts.
• Employment at a worksite where the employer employs 50 or more employees within 75 miles.

Note the third one. It is an employee-side test that looks like the employer-side test and is not the same. A covered employer with a satellite branch of eight people 90 road miles from the main shop has eight ineligible employees.

Counting the employer test

The counting rules are in 29 CFR 825.105. Anyone on the payroll for any part of a week counts for that week, whether they worked or not, including part-timers and people out on leave. The 20 workweeks do not have to be consecutive, and they do not have to be in the current year - last year counts too. Independent contractors are not counted, and this is where the count gets dangerous rather than merely tedious, because a worker you pay on a 1099 who is really an employee counts whether or not you counted him. The other route across the line is joint employment: under 29 CFR 825.106 a staffing-agency worker is counted by the agency and by the employer whose work they actually do, so a shop that runs its summer surge through an agency carries those people on its own headcount even though they never reach its payroll.

Here is the worksheet filled in for a shop that thinks it is nowhere near the line.

Weekly headcount is 37 for 38 weeks of the year (31 plus the 6), and 49 for the 14 summer weeks (37 plus 9 plus 3 agency temps). The highest weekly figure is 49. The test needs 50. This shop is not a covered employer, and it would still not be one if the seasonal window ran all year, because 49 is under 50 in every week.

But read what the count did. The owner's own number was 31. The real one is 37 for most of the year and 49 in season, and the margin to coverage is one person rather than 19. Two more year-round hires takes the year-round figure to 39 and the summer figure to 51. At that point the shop still is not covered, because 14 weeks is short of the 20 the test requires - and the season stretching to 20 weeks is what crosses it. Then the "or preceding calendar year" clause holds the shop covered through the following year even after it shrinks back.

The classification piece is the one to take seriously. Six of these forty-nine are on a 1099 and three more belong to an agency on paper, and whether either group counts is the same question that decides several much larger exposures (the classification cards own the test itself; the misclassification-cost card owns what a wrong answer is worth). A shop whose FMLA answer depends on that determination has not got an FMLA question, it has a classification question with an FMLA consequence.

Counting the employee test

The 1,250 hours are hours of service measured under FLSA principles, which means hours actually worked (29 CFR 825.110(c)). Paid vacation, holidays and sick days do not count toward it. The 75 miles are surface miles over public roads, not straight-line distance (29 CFR 825.111(b)), which for a shop with a mountain or a river between its two locations is a real difference.

Run it on two people at that same shop, now assuming it has crossed into coverage.

A service tech, three years in, averaging 44 paid hours a week and taking two weeks of vacation: 44 hours over 50 working weeks is 2,200 hours of service, well clear of 1,250. He reaches the threshold in about 29 weeks of a normal year (1,250 divided by 44 is 28.4). Tenure and worksite both check out. He is eligible.

The part-time office coordinator at 22 hours a week: 22 times 52 is 1,144 hours, short of 1,250, so she is not eligible even though she has been there six years. That generalizes to a number worth remembering: 1,250 divided by 52 is 24.04, so anyone averaging under about 24 hours a week cannot reach the hours test in a 52-week lookback no matter how long they have worked for you.

If you are covered, what it obliges

Briefly, because this half is documented everywhere and most shops reading this do not need it.

Twelve workweeks of leave in a 12-month period for the birth or placement of a child and bonding, for the employee's own serious health condition, for caring for a spouse, child or parent with one, or for a qualifying exigency arising from a family member's military deployment. Twenty-six workweeks in a single 12-month period for military caregiver leave.

The leave is unpaid, which is not the same as time off the shop cannot manage. Under 29 CFR 825.207 the employer may require, and the employee may elect, that accrued paid leave - vacation, PTO, paid sick time - run concurrently with the entitlement rather than stacking on the end of it. It has to be written into the policy and stated in the designation notice, though: a shop that leaves it unsaid discovers a tech has taken twelve FMLA weeks and is now starting three weeks of accrued PTO. Group health coverage continues on the same terms as if the employee were working, with the employee still responsible for their normal share. On return, the employee goes back to the same or an equivalent position - equivalent meaning pay, benefits and terms, not merely a job. Leave can be taken intermittently or on a reduced schedule where medically necessary, which is the part that actually hurts a small dispatch board.

There is also administration, and it has deadlines on your side: an eligibility notice within five business days of the request, a rights-and-responsibilities notice, a designation notice, and the option to require medical certification. A covered employer that never designates leave as FMLA leave does not stop the clock on the entitlement, it just loses the ability to count it.

What reaches a shop under the threshold

This is the more useful half for most readers, and it is the half nobody writes.

State family and medical leave with lower employer thresholds. Oregon's family leave act reaches employers with 25 or more employees. Vermont's parental leave provision reaches 10 or more and its family leave provision 15 or more. Maine's reaches 15 or more at one location. Several other states sit between those and 50. None is the FMLA and none has identical rules, so an owner who knows "the leave law starts at fifty" is carrying a number from a different statute.

State paid family and medical leave insurance programmes. Roughly a dozen states plus the District of Columbia have enacted these, funded by payroll contributions, and several reach employers of any size for the benefit even where the job-protection piece is narrower. In several of them the benefit and the job protection sit in different statutes with different thresholds, so being liable to contribute on an employee's behalf is not the same as owing that employee their job back when the leave ends. Washington's programme began paying benefits in 2020 and Massachusetts' in 2021, and the list has grown in most years since. This is the fastest-moving item on this page: check your own state and the current year rather than anything written here.

State and local paid sick leave. Around eighteen states plus a long list of cities, most with a low size threshold or none, typically accruing at one hour per 30 or per 40 hours worked. This is the one that reaches a six-person shop.

The ADA overlap, and the state version that reaches far lower. Where the leave is for the employee's own condition, unpaid leave can itself be a reasonable accommodation, on the analysis the accommodation card works through. That route has no 1,250-hour test and no 50-employee test, so a shop too small for the FMLA can still owe leave for the same medical event. Fifteen is the federal ADA threshold and nothing else. State disability statutes carry the same accommodation duty a long way below it: California's FEHA reaches employers of five, and New York's Human Rights Law, New Jersey's LAD, Michigan's and Minnesota's reach one. A six-person California shop that reads fifteen and concludes it owes nothing has answered under a statute that does not govern it.

USERRA. Military service leave and reemployment rights apply to every employer regardless of size. There is no threshold to be under.

Health continuation. Federal COBRA starts at 20 employees, and many states have a mini-COBRA law reaching smaller employers - some with windows shorter than federal and some longer. California's Cal-COBRA can take the total to 36 months and New York's runs 36 months, well past the 18 federal COBRA gives most people leaving a job. Do not assume the state version is smaller.

If your headcount is anywhere within a few people of 50, or you operate in more than one state, that is the call to make: take the payroll register for the last two calendar years, your worksite list with road distances, and your 1099 and agency-invoice lists to an employment lawyer, because the question is not "am I covered" but "which of five overlapping schemes applies to this one person's leave."

The leave no statute causes, and you will still be granting

The operational question survives the legal one. A good tech's wife has a baby, or his father has a stroke, and he needs six weeks. There is no statute involved, he is going to be gone anyway, and the only real decision is whether the shop handles it as a policy or as a favour.

A policy answers four things before the event: how much unpaid time the shop will hold a job for, whether accrued paid time must be used first, what happens to the health premium during the absence and who pays it, and who decides. Written down once, it applies to everyone and costs nothing to have. Decided in the moment, it becomes a precedent you did not choose, applied by someone who will be asked in six months why the other guy got eight weeks.

That last part is the real exposure for an uncovered shop. The FMLA is not the risk; inconsistency is. A shop that granted twelve weeks to one person and two to another with the same need has manufactured the comparison a discrimination claim is built on, and it will be asked to explain the difference with whatever it wrote down at the time, which is usually nothing.

References

• Family and Medical Leave Act: 29 U.S.C. 2611(2) and 2611(4); regulations at 29 CFR 825.105, 825.106 (joint employment and who counts whom), 825.110, 825.111, 825.207 (substitution of accrued paid leave)
• State disability statutes carrying the accommodation duty below the federal ADA threshold: California FEHA, New York State Human Rights Law, New Jersey LAD, Michigan and Minnesota
• U.S. Department of Labor, Wage and Hour Division, FMLA employer coverage and employee eligibility guidance
• Uniformed Services Employment and Reemployment Rights Act (USERRA), which applies regardless of employer size
• See related: Accommodation Requests in a Physically Demanding Trade; What Misclassification Actually Costs When You Lose; Is This Worker a 1099 or a W-2