The Leave Blog – The Rules of Counting

Doing business is complicated in the best of times.  Today’s economic and regulatory environment is making this prospect even more challenging.  Employers in Oregon who employ at least 25 employees must comply with the Oregon Family Leave Act (OFLA).  While burdensome, OFLA has at least one important distinction from FMLA – OFLA does not require employers to continue health benefits during an employee’s unpaid leave of absence.  As a result, some businesses seek to stay in the gap, a business model where employee count remains between 25 and 49 employees.  We understand the business justification for this decision, and also see the risk in doing so if the rules of counting under the FMLA are not fully understood. 

In an earlier blog, we address the FMLA’s threshold requirement for companies – that they employ at least 50 employees (within a 75-mile radius) for 20 or more workweeks in order to be covered by the FMLA.  (Are You Talking to Me?).  We now look at how to decide whether to count a worker toward the 50 employee FMLA threshold.   

First, it is important to remember that workweeks, for counting purposes, need not be consecutive. Any combination of 20 workweeks during a calendar year is sufficient to meet the FMLA threshold, so long as there are at least 50 employees during each of these weeks.

Second, the number of employees belonging to a company is typically established from company records.  Employees whose name appears on the payroll, regardless of whether they received pay, are considered to be employed and are counted for FMLA purposes; this true whether the employee is full-time or part-time.  There are some important exceptions, however:

• Employees who work less than a full week during their first or final week of employment are not counted during those short weeks; 
• Employees who are on paid or unpaid leave are not counted only if there is no reasonable expectation that the employee will return to work; 
• Employees who are employed outside the United States or any Territory are not counted and are not entitled to FMLA protection; 
• Employees who have been laid off are considered to be separated from employment and thus not counted, even if the layoff is considered temporary; and 
• Employees who are permanently disabled and would not reasonably be expected to return to work are not counted toward the 50 employee threshold.

Employers who hover close to the 50 employee threshold should be particularly careful to ensure that workers are not left on the payroll after they are no longer employed or where there is not a reasonable expectation that they will return.  It is also important to evaluate whether joint employment might apply in some way, such as through employment of temporary workers, and thus bump up the employee count. (See, Me and Thee).  In short, careful planning, record keeping, monitoring of employee count, and counting are the best ways to ensure that you do not inadvertently become FMLA-size when your business model and intent is otherwise. If you have questions about how the rules of counting apply to you or how the FMLA obligations impact your operations, please consult with your employment counsel.

This Blog is made available for educational purposes and to give you general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand that there is no attorney client relationship between you and the Blog publisher. The Blog should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.