Eligible Employees in Small City
ssiewert
2 Posts
I have a question concerning whether our employees are "eligible" employees under the FMLA. We are a municipality so we are automatically a covered employer. However, we have fewer than 50 employees so we have always thought that our employees are not eligible. I am revisiting this issue because we have an employee who has been off work for the last three weeks due to a medical problem. She has used up all of her sick time and vacation and she has given us no indication when she will be back. Her supervisor wants to keep her on but she has reached the point where she will have to start paying her entire health insurance premium to remain insured. Before I make her start paying, I want to make sure that I am doing the right thing. In my research I found a statement that volunteer firefighters count as employees for purposes of determining whether we meet the 50 employee threshold. Is this true? Our volunteer firefighters certainly do not work 1250 hours in a year but we have nearly 50 of them on our roster. If it is true, where can I find the legal authority that says it is? I cannot find it in either the federal statutes or regulations. Any help would be appreciated.
Comments
According to the DOL website: [url]http://www.dol.gov/dol/allcfr/ESA/Title_29/Part_825/29CFR825.110.htm[/url]
(a) An ``eligible employee'' is an employee of a covered employer who:
(1) Has been employed by the employer for at least 12 months, and
(2) Has been employed for at least 1,250 hours of service during the 12-month period immediately preceding the commencement of the leave, and
(3) Is employed at a worksite where 50 or more employees are employed by the employer within 75 miles of that worksite.
(You knew all that already.) Reading straight across what the DOL says in #3, I don't think it matters whether the 50 employees within 75 miles are covered or not, just that there are 50 employees.
If you trust Minnesota, (LarryC, please jump in with a "land of 10,000 comment - I love those!) check out this link http://www.lmnc.org/pdfs/HRBenefits/FMLA.pdf#search='fmla, volunteer firefighters' that says volunteer firefighters are included. But Minnesota is funny on some things.
I have been advised by a NE labor law attorney to set up a FMLA-like policy even if you are not eligible. That way, if you sneak by, or if you are challenged in court, you're already following the rules. It's a pain, but with so few employees, hopefully it won't come up much for you.
I'm not sure where you're located, but I am attending some FMLA training in Grand Island in April. If you'd like the details, click on the little computer on my post to send me an e-mail and I'll share them with you. Good luck!
Seriously, the way the FMLA is written, it defines which employers are covered and which employees are covered, but does a poor job of defining the connection between the two, as you've found out, ssiewert.
So, I guess (remember I'm from Minnesota) if you've already checked with the wage and hour people in your area, I would go with what they say. They're the ones who regulate the FMLA.
On the other hand, I like what Lenetta says about setting up a "FMLA friendly" policy. If you're growing you'll eventually get there. I personally like the FMLA and don't have any real problem with it, I guess.
"The determination of how many employees are employed within 75 miles of the worksite of an employee is based on the number of employees maintained on the payroll."
Our firefighters are not on the payroll so they do not count toward the 50 employee requirement.