5 FMLA facts that may surprise even the most-seasoned HR pros

How do I top yesterday’s FMLA cluster?

That’d be like asking a pitcher who just threw a no-hitter to get back out there and pitch another one. Well, gimmee a second to limber up, grab my rosin bag, and, Imma start dealing a few FMLA curveballs.

(See what I did there?)

A private employer with 50 employees may not be a covered employer under the FMLA. That’s because a private employer is covered if it maintained 50 or more employees on the payroll during 20 or more calendar workweeks (not necessarily consecutive workweeks) in either the current or the preceding calendar year. So, if for the first time in your company’s history, you hit 50 employees in the first week of May, you’re not covered under the FMLA until you accumulate 20 weeks of 50+ employees. That’s the 50/20 rule.
If an employer does not define the twelve-month FMLA period (calendar, fixed, roll forward, roll backward), the employee gets whatever method is most beneficial. So, make sure that you have a written policy defining the 12-month FMLA period.
An employee without 12 months of consecutive service with an employer may still be eligible to take FMLA leave. To be eligible to take leave under the FMLA, an employee must (1) work for a covered employer, (2) work 1,250 hours during the 12 months prior to the start of leave, (3) work at a location where 50 or more employees work at that location or within 75 miles of it, and (4) have worked for the employer for 12 months. The 12 months of employment do not have to be consecutive; however, a 7-year gap in employment resets the 12-month clock.
In a few states, an employee can actually refuse FMLA leave. One of your employees wants to take leave to care for a parent with a serious health condition. You want to designate that leave under the FMLA, but the employees says no. As Jeff Nowak blogged about here at FMLA Insights, if your business is in the Ninth Circuit, then your employee can refuse the FMLA designation. However, by refusing FMLA, an employee gets no FMLA rights (e.g., return to work).
Yes, there is such thing as FMLA light duty. If the doctor for an employee on workers’ compensation (and FMLA concurrently) certifies that the employee is able to return to work in a light duty position, the employer may offer light duty to that employee. However, the employee is permitted but not required to accept the position.

Want more FMLA nerd-dom from the king dork? Check me out at the SHRM Annual Conference on 6/30/15.