Many smaller local governmental entities believe that they are obligated to provide FMLA leave to their employees even though they have fewer than 50 employees in a 75 mile area.
Smaller public agencies, some with fewer than even five employees, experience the difficulty in serving their community with an employee on leave for this extended period of time.
While the federal government has done a pretty good job of confusing office holders and managers alike on this subject, public agencies (including local governmental agencies) with fewer than 50 employees in a 75 mile area are not required to provide FMLA leave for their employees.
The confusion centers around the regulations adopted for the Family Medical Leave Act. In particular, 29 CFR 825.108 states as follows:
(a) An employer under FMLA includes any public agency…
It then states as follows:
(d) …[a]ll public agencies are covered by the FMLA regardless of the number of employees; they are not subject to the coverage threshold of 50 employees carried on the payroll each day for 20 or more weeks in the year. However, employees of public agencies must meet all of the requirements of eligibility, including the requirement that the employer (e.g., State) employ 50 employees at the worksite or within 75 miles.”
Anyone reading Paragraph (d) above would be confused and without further guidance, public employers would be wise to provide FMLA benefits regardless of the number of individuals that they employ.
Fortunately for those public employers in the Seventh Circuit, the court clarified this in a relatively unknown 2004 case examining a Wayne County (Indiana) Auditor’s Office employee’s claim for FMLA benefits saying that “…even though public agencies fall within the FMLA regardless of the number of employees, those employees cannot seek FMLA benefits unless the agency employed at least 50 employees within a 75 mile area.” Fain v. Wayne County Auditor’s Office, 388 F.3d 257, 259 (7th Circ. 2004).
The Regional Solicitor’s office for the Wage & Hour Division at the U.S. Department of Labor confirms this position. They advise that assuming that the public agency cannot be aggregated with another, (e.g., a library which is not a separate taxing district aggregated with the Village,) then the 50 employee threshold applies.
Smaller public employers always can offer FMLA benefits on a voluntary basis, as a policy of the local governmental agency. Those who offer voluntary benefits should ensure that their policy is administered uniformly. Those who wish to discontinue their FMLA benefits should ensure that they amend their leave policies to reflect the change.
