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Ask The Lawyer By: Daniel A. Gwinn, Esq.

| June 4, 2017


QUESTION: I recently downsized, and cut staff at one of two businesses I own. I used to have a total of 52 employees; now I have 45. One of my staff put in for six weeks of FMLA leave because she’s expecting a baby in a couple of months. I told her the FMLA doesn’t apply to my company, because I employ less than 50 people. I offered to give her two weeks off with pay. I got a letter from a lawyer, saying I have to give the woman six weeks off, and threatening to sue me if I don’t. What am I missing?

ANSWER: The Family and Medical Leave Act (FMLA) requires employers with at least 50 workers to give employees up to 12 weeks’ unpaid leave for the birth or adoption of a child, to take care of their own serious health condition, or the serious health condition of the employee’s parent, spouse, or minor child. So, it would be reasonable to think that if you employ less than 50 people, you’re exempt from the requirements of the FMLA. Not so fast.

Under section 825.104(a) of the FMLA, an employer is covered if it employs “50 or more employees for each working day during each of 20 or more calendar workweeks in the current or preceding calendar year.” Once an employer meets the requirements for FMLA coverage, that coverage stays put for a while. If you employed 50 people and were a covered employer up until October 2016, you would remain a covered employer for the remainder of 2016 (50 employees or 20 calendar workweeks in the current year). In 2016, you would still be a covered employer, because you had 50 or more employees in the preceding year.

The bottom line is, unless there are other factors, your employee is probably entitled to FMLA leave. If you’ve already been contacted by an attorney, you should hire you own counsel to help you respond to the letter and avoid a lawsuit.

The lawyers at GWINN TAURIAINEN PLLC are experienced attorneys and are happy to answer your questions. Give us a call for a free initial telephone consultation about your legal needs. For consideration of your questions in our web column, please submit your inquiry on the “Contact Us” page of our website at

Information provided on “Ask the Lawyer” is current as of the date of publication. Laws and their interpretation are subject to change. The material provided through “Ask the Lawyer” is informational only; it should not be considered legal advice. Submitting a question to “Ask the Lawyer” does not create an attorney-client relationship between the person submitting the question and GWINN TAURIAINEN PLLC. To view previous columns, please visit our website.

GWINN TAURIAINEN PLLC, is a Troy based law firm representing clients from Warren, Sterling Heights, Ferndale, Royal Oak, Oak Park, Oakland and Wayne Counties and all of Southeast Michigan

By: Daniel A. Gwinn, Esq.
Attorney and Counselor at Law
901 Wilshire Drive, Suite 550
Troy, MI 48084
(248) 247-3300
(248) 247-3310 facsimile

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