How a few missing employee handbook words may open your FMLA floodgates

You wouldn’t want to make the same egregious mistake as a Michigan employer. After the jump, I’ll discuss the colossal screw-up and help you avoid it.

Don’t worry. I’ll wait and listen to some Foo Fighters¬†while you go grab your FMLA policy.

[Two bad words near the end of the Foo Fighters song. So, if you’re going to play it at work. Well, don’t play it at work].

* * *

[Editor’s Note: Good news, friends! My son, Pierce, is home from the hospital and feeling much better. Thank you for all of the kind words and good wishes. You guys, especially my paying clients, the rest of you are just ok, are the best].

The basic FMLA eligibility requirements….revealed!

The Family and Medical Leave Act permits eligible employees to take up to 12 weeks off in a 12-month period for, among other things, a serious health condition that makes the employee unable to perform the functions of the position of such employee.

To be eligible for FMLA leave, an employee must work for a covered employer and:

  • have worked for that employer for at least 12 months; and
  • have worked at least 1,250 hours during the 12 months prior to the start of the FMLA leave; and,
  • work at a location where at least 50 employees are employed at the location or within 75 miles of the location.

Seems easy enough. But, here’s how equally easy it is for an employer to mess this up.

In August, 2011, Terry Tilley suffered heart-attack symptoms on the job, for which he went to the hospital. Thereafter, his employer, the Kalamazoo County Road Commission sent Mr. Tilley FMLA paperwork and informed him that he was “eligible for FMLA leave” and that it was “important that we [] utilize Family Medical Leave Act (FMLA) leave” during his time off.

Except, here’t the thing: the Commission did not employ at least 50 employees at, or within 75 miles of, his worksite at the time he sought FMLA leave.

D’oh, d’oh, d’oh!

And, get this. The Commission’s Personnel Manual stated: “Employees covered under the Family and Medical Leave Act are full-time employees who have worked for the Road Commission and accumulated 1,250 work hours in the previous 12 months.”

Nothing in there about the 50/75 requirement.

Yes, you’re in deep d’oh now.

Now, here’s the thing, the FMLA sets the floor for employees. That is, if you want to be more liberal about providing family and medical leave for your employees (i.e., more leave, paid leave, you name it), you can write that into your policy. Similarly, you can unwittingly screw up too. Kinda like the Commission did. Yep, the Court ruled (here) that Mr. Tilley, who otherwise would have been ineligible for FMLA, was entitled to take it because of his employer’s actions and omissions.

Don’t make the same mistake.

Go grab your FMLA policy, check your employee eligibility section, and make sure it includes all three bulleted requirements listed above. And, here’s a pro tip, if you don’t have an FMLA policy, create one. For example, an FMLA policy allows you to define the 12-month leave period. If you don’t have an FMLA policy, and one of your employees meets the FMLA requirements, then you must calculate the 12-month leave period in a way that is most beneficial to the employee.

Updated:
  • Mar

    And they can’t require the employee to be “full time”. They can only go by the number of house worked in the previous 12 months. I had an employer who would hire employees as “per diem” and work them more than full time. Then they would try to use the “per diem” status to deny unemployment comp (when they dropped the employee’s hours), to deny participation in pension plans, and also FMLA.

  • Vicki Corwin County-Clerk

    I understood that covered employers were also public agencies: local, state, or Federal regardless of the # of employees it employs? is the Kalamazoo County Road Commission not a public entity?

    • Correct, Vicki. Public employers are covered employers under the FMLA. However, this case is one of the first (the first?) to apply the 50/75 rule to a public-sector employee.