This article is part of our occasional “Q&A with Sam” column intended to provide general information on common questions we get from our members about municipal liability, risk management and laws governing their operations.  If you have a question you would like to submit, feel free to e-mail or call CIRSA General Counsel Sam Light at saml@cirsa.org or 720-605-8002.

Our growing town has 30 full-time employees.  We also have some seasonal and part-time employees but even counting them we have a grand total of 46 employees.  One of our employees is about to become a first-time parent and has asked for 12 weeks of unpaid leave pursuant to the Family Medical Leave Act (FMLA).  Are we covered by the FMLA?  And, are we required to grant this request?

Our CIRSA members include many municipalities with less than 50 employees, and we get these questions often.  But, our answers—which are “Well, Yes and No”—can seem a bit confusing and are explained below.

Background on the FMLA.  First, the FMLA is the federal law that requires certain employers to allow employees to take up to 12 weeks of job-protected leave.  The FMLA’s express purpose is “to allow employees to balance their work and family life by taking reasonable unpaid leave” for certain specified needs.  29 C.F.R. 825.101(a).  These include the employee’s own serious health condition; the birth or adoption of a child; the care of a child, spouse, or parent who has a serious health condition; the care of a covered servicemember with a serious injury or illness, or because of “qualifying exigency” related to active military duty.   The FMLA does not require the leave be paid but does allow employers to require that paid leave be used concurrently with FMLA leave.

Covered Employers.  The FMLA applies differently to private employers and public agencies.  A private employer is a covered employer only if it has at least 50 employees.  However, the FMLA also defines “employer” to include “any public agency” regardless of the number of employees.  Specifically, the FLMA relies on the definition of “public agency” in the Fair Labor Standards Act (FLSA) which defines “public agency” to include the federal government, states, and any “political subdivision of a state.”  That includes municipalities.  So, to answer the first question, yes, our growing town with 30 employees is an “employer” covered by the FMLA.

Eligibility for Leave.  But, while the town is a covered employer, only eligible employees are entitled to take FMLA leave.  An “eligible employee” is one who:

• Works for a covered employer;
• Has worked for the employer for at least 12 months;
• Has at least 1,250 hours of service for the employer during the 12 month period immediately preceding the leave; and
• Works at a location where the employer has at least 50 employees within 75 miles.

An employee must meet ALL these criteria to be entitled FMLA leave, and this is where a 50 employee threshold comes into play.  While our town with 30 employees is covered by the FMLA, it has no “eligible employees” entitled FMLA because it does not have at least 50 employees.

The FMLA regulation on public agency coverage confirm this result, stating all public agencies are covered employers; “however, employees of public agencies must meet all of the requirements of eligibility, including the requirement that the employer (e.g., State) employ 50 employees at the worksite or within 75 miles.”  29 C.R.S. 825.108(a).  So, to answer the second question, no, our first-time parent is not an eligible employee and the Town is not required by the FMLA to grant this leave request.

Non-FMLA Family Leave.  But, that may not be the end of the inquiry.  While the FMLA does not require the Town grant this leave request, your municipality may be one of those that provides some form of family leave irrespective of FMLA requirements.  For example, your personnel manual may say the town provides FMLA leave even though you don’t have 50 employees.  Or it may say the town provides unpaid leave for family or medical reasons, subject to your own specific criteria and without any reference to the FMLA.

If your town falls in the first category, you’ll want to consider whether what you’ve said in your policy is what you really intend.  After all, you’ve arguably promised to provide leave under the FMLA framework though not required, and that can be good or bad.  On one hand, if you follow the FMLA framework, you have a roadmap of how to handle requests for leave and medical inquiries, and you can even use FMLA forms for processing the leave request and related medical certifications, etc.  On the other hand, by saying you will provide FMLA leave, you’ve arguably subjected yourself to all the complexities and requirements of the FMLA.  Was that what you intended?  If not, you’ll want to revise your policies accordingly.

Employee Counting Rules.  If your municipality is closing in on the 50-employee threshold, you’ll want to pay close attention to how that threshold is determined.  While these rules are complex and a full discussion is beyond the scope of this article, you’ll want to be sure you are properly determining who is counted for purposes of the 50-employee threshold.  For public agencies, some common questions include whether to count part-time employees, seasonal employees, volunteers, or elected or appointed officials who receive some form of salary.

In general, the number of employees is determined when the employee gives notice of the need for FMLA leave.  With limited exceptions, any full-time or part-time employees whose names appears on the employer’s payroll are counted.  With regarding to volunteers, the FMLA relies on the FLSA definition of “employee,” which expressly states “employee” does not include a volunteer so long as person does not receive compensation.  Generally, a volunteer is not counted for FMLA entitlement purposes if they receive only a nominal stipend, but the specific circumstances must be reviewed closely, and some court cases have found volunteers should be counted based on specific facts. Finally, the FLSA definition of “employee” also does not an individual “who holds a public elective office” but, again, specific circumstances must be reviewed closely to ensure proper counting.

Conclusion.  While any public agency is a covered employer under the FMLA, an employee is only eligible for FMLA leave if the agency employs at least 50 employees.  Municipalities with workforces close to that threshold must carefully review this issue, as a mistake in determining eligibility can lead to claims of interference with FMLA rights, which can be costly and include an award of damages and attorney’s fees to a prevailing employee.

More general information about the FMLA can be found in U.S. Department of Labor Fact Sheets, including a helpful overview and other fact sheets on the DOL website.  

Note:  This column is intended for general information purposes only and readers should consult with their entity’s own counsel for legal advice on specific issues.