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FMLA applies to any public or private employer with 50 or more employees, as well as to all public agencies, and public and private elementary and secondary schools, regardless of number of employees
a covered employer must post a notice in the workplace concerning the FMLA and how employees may qualify under its provisions (click here (PDF) for the official poster from the U.S. Department of Labor)
even though all governmental (public) employers and all elementary and secondary schools are covered employers regardless of how many employees they have, individual eligibility requirements may still render an employee ineligible to take FMLA leave - see the following item
to be eligible, an employee has to have worked at least 1250 hours within the last 12 months; has to have worked at least 12 months' total time for the employer; and be employed at a facility at which at least 50 employees are employed within a 75-mile radius - due to the 1250-hour requirement, many part-time employees will not be eligible for FMLA leave - however, state FMLA laws may have lower requirements - Texas does not have an FMLA-style law, so only the federal law applies
time spent in military duty counts toward both the hours worked and tenure requirements - for details, see the article titled "Legal Issues for Military Leave" in this book
the reason for the absence must be the serious medical condition of the employee or of a member of the employee's immediate family; the birth or adoption of a child or the placement of a foster child in the home; or "any qualifying exigency" associated with the employee's spouse, child, or parent being on active military duty, or having been notified of an impending order to active duty, in support of a contingency operation (the U.S. Department of Labor has not yet issued a regulation defining "any qualifying exigency" (which generally means an urgent or emergency situation), but enforcement of this latter provision is on hold pending issuance of a rule by DOL; in the meantime, employers are urged to voluntarily comply with such a leave request - see DOL's poster on the new law at http://www.dol.gov/esa/whd/fmla/NDAAAmndmnts.pdf (PDF))
the employer must make up to 12 weeks of paid and/or unpaid leave during a year available to such an employee
new military caregiver leave: up to 26 weeks of paid and/or unpaid leave during a year is available to an employee whose spouse, child, parent, or "next of kin" (nearest blood relative) is recovering from a serious illness or injury suffered in the line of duty while on active military duty; the law that created this category of FMLA leave also put an outside limit of 26 weeks of all types of FMLA leave in a "single 12-month period" - see http://www.dol.gov/esa/whd/fmla/NDAAAmndmnts.pdf (PDF) (note: there is no guidance yet on how the "single 12-month period" corresponds to the various methods allowed under FMLA regulation 29 C.F.R. § 825.200(b) for determining the 12-month period during which FMLA leave is taken)
the leave can be all at once or intermittent, even 2 or 3 hours at a time, but intermittent leave all goes toward the 12-week limit
it is best to give employees prompt written notice that they are on FMLA leave and that they must keep in touch with the employer at regular intervals specified by the employer - the return date can be specified or left open
FMLA leave cannot be counted against an employee under a "no-fault" or "point system"
important for compliance with Texas Payday Law limitations on wage deductions: if the employer is to make payments on behalf of the employee to keep the health insurance plan in effect during the FMLA leave, the employer should make sure to have the employee sign a written agreement that any money so paid will be regarded as an advance against future wages owed and will be repaid in installments deducted from future paychecks
FLSA problem - docking exempt workers for time missed
executive-, administrative-, and professional-exempt workers must meet the "salary basis" test - for all employers in the private sector, partial-day deductions from salary will destroy the salary basis for the exemption
the only exception to that rule is for a situation covered by the FMLA - in that case, hourly docking of pay or leave time would be allowable, but careful documentation must be maintained - this exception only works if the employer, the employee, and the situation are all covered by the FMLA!