Federal Agencies     Federal Laws     CA Agencies     CA Laws     HR Forms     Minimum Wages    
HR Quick Reference     HR Audit     Talent Acquisition     HR Central Home
Family and Medical Leave Act (FMLA)
The FMLA entitles eligible employees of covered employers to take unpaid, job-protected leave for specified family and medical reasons with continuation of group health insurance coverage under the same terms and conditions as if the employee had not taken leave. Eligible employees are entitled to:
  • Twelve workweeks of leave in a 12-month period for:
    • the birth of a child and to care for the newborn child within one year of birth;
    • the placement with the employee of a child for adoption or foster care and to care for the newly placed child within one year of placement;
    • to care for the employee’s spouse, child, or parent who has a serious health condition;
    • a serious health condition that makes the employee unable to perform the essential functions of his or her job;
    • any qualifying exigency arising out of the fact that the employee’s spouse, son, daughter, or parent is a covered military member on “covered active duty;” or
  • Twenty-six workweeks of leave during a single 12-month period to care for a covered service member with a serious injury or illness if the eligible employee is the service member’s spouse, son, daughter, parent, or next of kin (military caregiver leave).
Employers Covered by Family and Medical Leave. Family and medical leave laws cover private employers with 50 or more employees on the payroll during each of any 20 or more calendar weeks in the current calendar year or the preceding calendar year. Family and medical leave laws cover all public employers, regardless of the number of employees. This includes employees on the payroll who received no compensation, part-time employees, commissioned employees and employees on leave who are expected to return to active employment. Employees on layoff do not count. You remain covered by FMLA/CFRA even when your employee count falls below 50 employees. To lose FMLA/CFRA coverage, you must employ fewer than 50 employees for 20 workweeks in the current and preceding year. These workweeks need not be consecutive.
Employers Covered by Family and Medical Leave Without Eligible Employees. You could be covered by FMLA/CFRA, but have no employees who are eligible for FMLA/CFRA leave. For example, assume that an employer has 30 employees in San Diego, 30 in Santa Barbara and 30 in San Francisco. Although the employer has a total of 90 employees and is a covered employer, no employees are eligible for family and medical leave because no one location has 50 employees within a 75-mile radius. The employer is still obligated to post the family and medical leave poster at each location, but can deny family and medical leave to employees.
Professional Employer Organizations (PEO). A Professional Employer Organization (PEO) contracts with client employers to perform administrative functions, such as payroll, benefits, regulatory paperwork and updating employment policies. A PEO does not create a joint employment relationship with a client organization’s employees when the PEO merely performs administrative functions. However, if the PEO has the right to hire, fire, assign or direct and control the client’s employees or it benefits from work that employees perform, a joint employment relationship may be established. Consult legal counsel if you are unsure if you have a joint employment relationship with another organization.
Joint Employers Under the FMLA. For purposes of the FMLA, when two or more employers exercise some control over the working conditions of employees, the businesses can be joint employers, even if they are separate and distinct entities. When employees perform work that simultaneously benefits two or more employers or perform work for two or more employers during the workweek, a joint employment relationship will likely exist. The determination of whether a joint employment relationship exists is based on the totality of the entire relationship between the two employers:
  • Does an agreement exist between the employers to share an employee’s services or to interchange employees?
  • Does one employer act directly or indirectly in the interest of another employer in relation to the employee?
  • Are the employers associated in some way with respect to the employee’s employment and, thus the employers are deemed to share control of the employee, directly or indirectly, because one employer controls or is controlled by or is under common control with the other employer?

For example, a company decides to hire a temporary employee through a staffing or placement agency. Whether this temporary employee should be counted for purposes of FMLA coverage by both the company and the staffing agency generally requires analyzing whether both parties exercise some control over the temporary employee’s working conditions.

Federal regulations state that “joint employment will ordinarily be found to exist when a temporary placement agency supplies employees to a second employer.” A worker jointly employed by two employers must be counted by both employers for purposes of determining coverage and eligibility under the FMLA, regardless of whether just one employer actually issues payment to the worker.