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May 19, 2016

What employee threshold triggers the FMLA?

Q&ALeave Laws 

Q: We currently employ 49 people and we’re about to hire one more employee. Will we have to start complying with the federal Family and Medical Leave Act (FMLA) as soon as we have 50 employees on our payroll?

A: Probably not, but it depends. An employer is considered “covered” under the FMLA if it has 50 or more employees on its payroll for 20 or more calendar workweeks (which do not need to be consecutive) in either the current or preceding calendar year. Both full-time and part-time workers are included in the total employee count. If this is the first time you are reaching the 50-employee mark, you do not have to implement FMLA until you have 50 employees on your payroll for 20 weeks. If you are at 50 or more employees only because of seasonal hiring, you may never need to provide time off under the FMLA, as long as your headcount is only temporarily at the 50-employee mark.

However, there are two important caveats: (1) consider your employee count this year and last year; and (2) don’t forget any state leave laws that may apply. Many states are updating their leave laws, so it’s important to be aware of any recent changes and state-specific regulations. Some state leave laws trigger at less than 50 employees; for example, Oregon just recently implemented a sick leave law, which went into effect earlier this year, and requires employers with 10 or more employees (6 employees for employers located in Portland) to give workers 40 hours of paid sick leave. (Smaller employers must also provide 40 hours of sick leave, but it can be unpaid.) For help determining exactly when FMLA and state leave laws kick in, contact your Vigilant employment attorney for legal counsel.

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