Does My City Have to Provide It?
All public entities, including cities, are obligated to provide FMLA.
Does this mean that all city employees are eligible to take FMLA?
The answer to that is NO. For an employee to be eligible for FMLA, they must meet the following requirements:
What is the city required to do if it has no eligible employees?
The only requirement is to post the federal FMLA poster in a conspicuous place. The required poster, which was updated in 2016, and related information is provided by the Department of Labor (DOL) and can be found at their website. The DOL states “All covered employers are required to display and keep on display a poster explaining the provisions of the FMLA and telling employees how to file a complaint with the Wage and Hour Division of violations of the Act. The poster must be displayed prominently where employees and applicants for employment can see it. The poster and all the text must be large enough to be easily read and contain fully legible text. Covered employers must display the poster even if no employees are eligible for FMLA leave.”
NOTE: Even if the city has no employees eligible for FMLA, keep in mind that an ADA accommodation in the form of leave time may be applicable if your city has 8 or more employees.
What is the city required to do if it has eligible employees?
If the city does have eligible employees, it must, in addition to the required poster, provide notices to eligible employees. This notice can be in the form of the written policy within your employee handbook. This will suffice as long as you have an acknowledgement signed by the employee that they received the handbook. Specifically the DOL states that “If a covered employer has any eligible employees, it must also provide general notice to each employee by including the notice in employee handbooks or other written guidance to employees concerning benefits or leave rights if such written materials exist.”
What if a city that has no eligible employees wants to provide FMLA?
Keep in mind that even if your city is not required to provide FMLA, the city can choose to offer unpaid leave. This would be a personnel policy decision that the city would make based on whether the city can afford to offer this type of leave as an employee benefit and if the city would have the employee coverage required if someone needed to use the leave.
NOTE: Even if the city does not have any eligible employees but there is an FMLA policy in the current employee handbook, you must follow it until removed from the handbook. In addition to what may be in your handbook, you must also look at current and past practices. If the city has offered FMLA or a similar leave to employees, you may have to offer the leave to current employees unless you implement a policy that states otherwise. If this is the case be certain to discuss the best way to handle this situation with your city attorney.
Mark your calendars and register for a webinar on the Intersection of FMLA, ADA and Workers’ Compensation on Wednesday October 27. For questions on FMLA or other personnel-related matters, contact Andrea Shindlebower Main, KLC personnel services manager.