Benefits Q&A: Do We Still Provide FMLA with Less Than 50 Employees?

Question:

I understand the Family and Medical Leave Act (FMLA) applies to employers with 50 or more employees for at least 20 consecutive weeks in a calendar year. Our company has not had 50 employees since December of 2020, so I don’t believe it technically applies to us at this time. My question is whether we can still offer FMLA to eligible employees even though we’ve fallen below 50 employees? We are not sure when we will get back to that number.

Answer:

Not only can you continue offering FMLA to employees after you drop below 50 employees, but depending on the specific facts you may be required to. Here’s why.

1. While you are correct that the FMLA applies to employers that have at least 50 employees in at least 20 weeks of a calendar year, those weeks do not have to be consecutive.
2. Once an employer meets the “50 employees for 20 weeks” threshold, it is required to comply with the FMLA during the remainder of that year and during the subsequent plan year. Therefore, an employer that was subject to the FMLA in 2020 is still subject to it throughout 2021 regardless of how many employees it has.
3. If the employer has not met the “50 employees for 20 weeks” threshold by the end of 2021, then it will no longer be considered a covered employer under the FMLA starting January 1, 2022. However, if the employer hits the 20-week requirement mid-year in 2022, it would again be subject to the FMLA for the remainder of the year and all of 2023.
4. Employers can provide FMLA-like leave even if they are not required to. In my experience, employers often do this when they go back and forth from year to year on having over and under 50 employees.

When determining whether you hit the 20-employee mark, make sure you count all employees, including part-time, seasonal, temporary and anyone out on leave.

For additional information, check out the Employer’s Guide to The Family and Medical Leave Act from the Department of Labor.