When Do I Have to Comply With the FMLA?

Hi, this is Dustin Paschal, an employment lawyer at Simon Paschal PLLC and welcome to Simon Paschal says. In today’s episode, we’re going to talk about FMLA eligibility.

The FMLA applies to any public or private employer with 50 or more employees, as well as to all public agencies and public and private elementary and secondary schools, regardless of the number of employees. If you’re a covered employer, you must post a notice in your workplace concerning the FMLA and how employees may qualify under its provisions. You can find this poster on the Texas Workforce Commission’s website.

To be eligible for the FMLA, an employee has to have worked at least 1,250 hours within the last 12 months. That employee has to have been employed for at least 12 months total time for the employer at issue. And the employee must be employed at a facility, at which at least 50 employees are employed, within a 75 mile radius. Due to this 1,250 hour requirement, many part-time employees will not be eligible for FMLA leave. However, make sure to check state FMLA laws, which may have lower requirements than the federal law. Texas, just so you know, does not have an FMLA style law, so only the federal law applies.

Another potential issue for employers is promising employees FMLA leave, when those employees are not eligible for the FMLA. Many employers will have an FMLA leave policy in their handbook, even though they do not have 50 employees, or even though they don’t have an employee that’s employed at a location, that does not have 50 employees within the 75 mile radius. So in these situations, when those policies are in the handbook, if the Department Of Labor or a court determines the employer promised FMLA leave to an employee who is otherwise not eligible, the company may have to extend FMLA leave anyway, if the conditions for what’s called equitable estoppel are satisfied. So that’s just something to keep in mind.

Now kind of going back to the reasons, or the outline for FMLA leave, let’s talk about what the reason for the absence must be for the employee. So the reason must be the serious health condition of the employee or over a member of the employee’s immediate family, or the birth or adoption of a child, or the placement of a foster child in the home, or there’s also any qualifying exigency. Which generally means an urgent, or emergency situation associated with the employee’s, spouse, child, or parent, being on active military duty, or having been notified of an impending order to active duty in support of a contingency operation.

So now going back with regard to leave to care for a child’s serious health condition, or parental leave for a biological, adopted, or foster child, the term parent means a father, a mother, or anyone else who stands in loco parentis, which means in the place of a parent, to the child. Including same sex parents.

Now when we move on to talking about the kind of leave that’s available, the employer must make up to 12 weeks of unpaid leave available during a year to an eligible employee. Now the employer can require employees to substitute paid leave for that unpaid leave, or take it simultaneously, but the only requirement under the law is unpaid leave. The leave can be all at once, or intermittent. Intermittent can even be two or three hours at a time, but intermittent leave all goes toward the 12 week limit.

There’s also a military caregiver leave, which provides up to 26 weeks of paid, or unpaid leave during a year to an employee whose spouse, child, parent, or next of kin, otherwise their nearest blood relative, is recovering from a serious illness or injury suffered in the line of duty, while on active duty. The law that created the category of FMLA leave, also put an outside limit of 26 weeks of all types of FMLA leave, in a single 12 month period.

As you can see, the FMLA can be quite complicated and there’s a whole host of other specific provisions that can apply to employers, but this is just kind of a general overview. So hopefully this gives you that idea of the eligibility requirements and what your company has to do in general.

Thanks for tuning in to Simon Paschal says, we’ll see you next time.


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