Editor’s note: HR & Benefits News is a new monthly column by Chris Cooley, co-founder of MyHRConcierge and SMB Benefits Advisors.
The Family Medical Leave Act (FMLA) provides protected leave to employees when they must take extended absences for qualified reasons. The calculation to determine if a grocer meets the 50-employee threshold to comply with FMLA can be very confusing. Due to this confusion, we often receive questions from grocers wondering if they have to comply. These questions often relate to employees that are missing work and the grocer is trying to determine the employee’s rights and how to address the absences. In these instances, it is very important for the grocer to know whether they must comply with the FMLA to protect their company from significant risk.
What is FMLA?
FMLA is a federal law that provides employees who must go on qualified leave the following benefits:
• Unpaid Leave
• Job Protection
• Health Insurance Protection
Employees receive these benefits for the following qualifying reasons for leave; the amount of time they are afforded for the leave is dependent on the reason for the leave:
• Birth of Child—12 weeks
• Adoption or Foster Care—12 weeks
• Medical Care for Self, Spouse, Child or Parent—12 weeks
• Qualifying exigency because of covered active duty or impending call to active duty—12 weeks
• Care for injured/ill service member or veterans within five years of leaving service—26 weeks
Which grocers must comply?
FMLA applies to all public-sector employers. However, only certain private-sector employers must comply. Private-sector employers who have 50 or more employees for 20 or more work weeks during the current or preceding calendar year must comply with FMLA. An employee is considered to be employed each day of the week if they work any part of the week. The work weeks do not have to be consecutive.
The following employees must be counted to determine the number of employees:
• Any employee that works in the United States or any territory or possession of the United States;
• Any employee that appears on the payroll records (whether or not they receive compensation for the work week);
• Any employee on paid or unpaid leave as long as they are expected to return to active employment;
• Employees of foreign firms that operate in the United States; and
• Full-Time, part-time, temporary and seasonal employees.
Do I have to include all of my companies in the calculation?
When a grocer calculates the number of employees, they must include all commonly owned entities. When determining whether entities are commonly owned, you must consider:
• Common management
• Interrelation between operations
• Centralized control of labor relations
• Degree of common ownership and financial control
You also must consider if you have employees under a joint employment arrangement. If two or more employers have control over the work or working conditions of an employee, they may be joint employers under the FMLA. An example of joint employer relations is when a temporary employment agency provides employees to the grocer. In these instances, the employee must be counted by both the temporary employment agency and the grocer even though the employee is only on one employer’s payroll.
Why compliance is important
Not properly determining whether you must comply with FMLA can be very costly. When employees are not provided their rights under FMLA, grocers can be forced to provide some or all of the following:
• Back wages, salary and benefits lost as a result of an employer’s wrongful actions
• Future wages, salary and benefits an employee is likely to lose as a result of a grocer’s wrongful actions
• Liquidated damages that are equal to the amount won in back and future wages
• Equitable or other relief (reinstatement, promotion, etc.)
As you can imagine, these amounts can add up very quickly. Therefore, it is very important for all grocers to determine if they must comply with FMLA when addressing employee leave.
Cooley provides HR compliance and administration, workforce management and benefits advisory solutions; his companies specialize in helping small to medium businesses throughout the U.S. He can be reached at 855-538-6947, ext. 108, or at [email protected]