Less than 50 workers? Stay silent on FMLA

Only employers with 50 or more employees within a 75-mile radius must offer job-protected FMLA leave to their employees. If your organization is below that limit, make sure not to mention it in your employee handbook or benefits materials.

If you include even a general statement that your organization complies with the FMLA, you may be courting an FMLA lawsuit.

Recent case: Brian’s employer, a construction firm, had less than 50 employees so it wasn’t required to offer FMLA leave.

When Brian needed surgery he took time off and was replaced. He sued, saying his leave should have been FMLA-protected.

Reason? While the company wasn’t covered under the FMLA, its’ handbook stated that the company’s family leave policy “complies with the provisions of the Family and Medical Leave Act of 1993.”

Seeing that phrase, the court agreed Brian was covered. It said the handbook statement could fool a worker into believing the FMLA applied.

Note: The employer still won the case because Brian couldn’t prove he would have skipped leave had he known he wasn’t covered. But the cost and time of defending the suit could have been avoided with a better-worded policy. (Palan v. Inovio, 3rd Cir.)