Regulatory Nonsense or Performance Contradiction – You Be the Judge


Posted by Frank Cania, MSEmpL, SPHR – President of DRIVEN HR, LLC

Full and fair disclosure; before you start reading this post you should know that the senselessness I’ll be discussing directly impacts an extremely small number of public agencies (small counties, cities, etc.)  However, this post is still worth reading because there is a broader, somewhat disturbing point that may apply to all of us from time-to-time.


The HR director from “Beautiful Village” recently sent me an email with a leave-related question.  I was happy to answer the question and added, “and don’t forget the Family and Medical Leave Act (“FMLA”) may apply as well.”  In her reply she stated, “Beautiful Village doesn’t employ 50 people so the FMLA doesn’t apply.”  Because we have a few public agency clients, I knew there was a special rule regarding FMLA coverage for government employers like Beautiful Village, but what was it?  

According to the FMLA, “[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 a year.”  If we stop at this point, no confusion.  (But we all know better, don’t we?)  The very next sentence reads, “[h]owever, 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.”  BAM! Performative Contradiction!  (Sorry, whenever I learn a new word or phrase I love finding any excuse to use it.)

Highlights of the Issues

Let’s take a step back from the excitement and think about what the FMLA does.  It requires covered employers to allow employees to take a considerable chunk of time off from work – up to 12 weeks for personal or family medical issues, up to a maximum of 26 weeks of military caregiver leave – job-protected guaranteed leave. The leave must be necessary because of the employees’ own serious illness, the illness of a family member who needs care, childbirth or adoption, for certain needs of family members on active military duty, or to care for certain veterans with serious injuries or illnesses.

For the requirements to apply, an employer must be a “covered” employer.  I’ll spare you the lengthy, confusing, and redundant regulatory passages (and some regulatory nonsense too!) and simply repeat what is stated above, “[a]ll public agencies are covered by the FMLA regardless of the number of employees…”  Therefore, Beautiful Village is a covered employer.

But here’s the rub. Just because Beautiful Village is a covered employer, that doesn’t mean it has any “eligible employees.”  Remember, an eligible employee “must meet all of the requirements of eligibility, including the requirement that the employer…employ 50 employees at the worksite or within 75 miles.  Since Beautiful Village has fewer than 50 employees total – at any worksite or within 75 miles of a worksite – none of its employees meet all of the requirements to be “eligible employees” as defined by the FMLA.

Employer Compliance Points

As a covered employer, with no covered employees, it appears Beautiful Village is responsible for meeting the information posting requirements of the FMLA [“Every employer covered by the FMLA is required to post and keep posted on its premises, in conspicuous places where employees are employed, a notice explaining the Act’s provisions and providing information concerning the procedures for filing complaints of violations of the Act.“], but not for providing employees with job-protected leave.  [“Covered employers must post this general notice even if no employees are eligible for FMLA leave.“]

What’s Next

Beautiful Village should consider updating the employee handbook to add the appropriate FMLA-related policies, and post the FMLA general notice as required.  For the rest of us, this should serve as a reminder to double-check the rules we believe do, and more importantly don’t apply to us as employers.  Consider what may happen if an employee of Beautiful Village files an FMLA complaint with the Department of Labor (“DOL”) because her employment was terminated, and she was replaced, while out on unpaid family leave.  After a DOL investigation Beautiful Village may be notified that, although the employee was not eligible for job-protected leave under the FMLA, as a covered employer Beautiful Village failed to post the appropriate notice and did not follow the proper procedures to notify the employee she was not eligible under the Act.  As a result, Beautiful Village may be required to reinstate the employee with back pay, and face fines and penalties for failing to comply with the FMLA.  There you have it…Performance Contradiction.

The lesson for all of us; things are not always as they appear in this Land of Oz we call regulatory compliance.


Please feel free to contact me at, or 585-672-4142, x15 with questions or for more information.

Disclaimer: This content is for informational purposes only, does not constitute a legal opinion, and is not legal advice. The facts of each situation should be considered and analyzed individually. Therefore, you should always consult with competent employment counsel regarding any issues discussed here. 

Click HERE to learn more about Frank Cania, author of Employers’ HR Advisor.

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