If an employer drops below 50 employees, is it still covered under the Family and Medical Leave Act (FMLA)?

Most employers will still be covered under the FMLA for at least the current year and for the following year. Public agencies, including most federal, state and municipal agencies, are covered regardless of the number of employees. Public and private elementary and secondary schools are also covered employers without regard to the number of employees employed.

FMLA regulation 825.105, paragraph (f) on counting employees to determine coverage applies. The regulation states: “Once a private employer meets the 50 employees/20 workweeks threshold, the employer remains covered until it reaches a future point where it no longer has employed 50 employees for 20 (nonconsecutive) workweeks in the current and preceding calendar year. For example, if an employer who met the 50 employees/20 workweeks test in the calendar year as of September 1, 2008, subsequently dropped below 50 employees before the end of 2008 and continued to employ fewer than 50 employees in all workweeks throughout calendar year 2009, the employer would continue to be covered throughout calendar year 2009 because it met the coverage criteria for 20 workweeks of the preceding (i.e., 2008) calendar year.”