Hey Compliance Warriors!

I get questions every week related to FMLA and how to count the 50 employees each year. I hope this helps clear up the question.

A private-sector employer is covered by the FMLA if it employs 50 or more employees in 20 or more workweeks in the current or previous calendar year. An employee is considered to be employed each working day of the calendar week if the employee works any part of the week. The workweeks do not have to be consecutive.

Employees who must be counted include:

• Any employee who works in the United States, or any territory or possession of the United States,

• Any employee whose name appears on payroll records, whether or not any compensation is received for the workweek,

• Any employee on paid or unpaid leave (including FMLA leave, leaves of absences, disciplinary suspension, etc.), as long as there is a reasonable expectation the employee will return to active employment,

• Employees of foreign firms operating in the United States, and

• Part-time, temporary, seasonal, and full-time employees.

Others who do NOT have to be counted include:

• Employees with whom the employment relationship has ended, such as employees who have been laid off,

• Unpaid volunteers who do not appear on the payroll and do not meet the definition of an employee,

• Employees of United States firms stationed at worksites outside the United States, its territories, or possessions, and

• Employees of foreign firms working outside the United States.

Once an employer meets the requirement for FMLA coverage, the employer is a covered employer and will remain covered as long as it employs 50 or more employees in 20 or more workweeks in either the current calendar year or in the previous calendar year.

For example, last year during its busy season from June 1st to October 31st, a restaurant had more than 50 employees on payroll. In the current year, the same restaurant employs fewer than 50 employees when an employee requests FMLA leave. Because the restaurant employed more than 50 employees for more than 20 workweeks in the previous year, the restaurant is considered to be covered at the time of the request and must offer the FMLA benefits and protections to its employee, if eligible.

Review sections 825.104 and 825.105 of the FMLA regulations for more information about coverage.

Here is a great FMLA resource: https://www.dol.gov/sites/dolgov/files/WHD/legacy/files/employerguide.pdf

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