When is an employer required to follow the FMLA?
The FMLA applies to all public employers and public and private elementary or secondary schools. It also applies to private employers who:
- Have 50 or more employees.
- Have employees who work 20 or more workweeks in either the current or preceding calendar year.
- Have a business that is jointly owned or has a successor owner.
The rules as to who is eligible to take time off under the FMLA and which employers are required to provide leave can mean that some seasonal employers will not have to provide these benefits to workers.
Which employees are covered?
Airline employees have specific eligibility requirements. Otherwise, to be eligible for FMLA time off, an employee must:
- Work for a covered employer, have been on the job for at least 12 months, and have worked at least 1,250 hours in the rolling 12-month calendar year before the FMLA leave begins. If a workday is eight hours, this is equal to roughly 156 workdays. This typically works out to be close to eight months on a full-time job.
- Work at a location that has at least 50 employees within 75 miles of it.
The most common reasons employees will take FMLA time is when they give birth to, adopt, or foster a child or children. Workers also take time off to care for a family member with a serious health condition or to seek treatment for their own serious health condition.
What can an employer not do while an employee is out on FMLA leave?
As an employer, you are prohibited from requiring an employee to perform any work duties while they are taking FLMA time. You also cannot fire, discipline or otherwise penalize the employee during their FMLA-covered leave period.
If the employee’s health situation is serious, you can, as their employer, only contact health care providers to “authenticate or clarify recertification.” Importantly, though, you cannot require any other medical opinions, as per section 825.100 of the 1993 FMLA.
