This is to update you on a recent decision of the Federal Sixth Circuit Court of Appeals pertaining to the Family and Medical Leave Act (FMLA). On January 26, 2015, the Court in Tilley v Kalamazoo County Road Commission1 clarified the applicability of the FMLA to smaller public agencies. The FMLA is applicable to “private sector” employers with 50 or more employees within a 75 mile radius. The law includes in the definition of “employer” all public sector agencies2. The Court in Tilley ruled on which “employees” are eligible to be covered under the FMLA. The Court concluded that in order to be covered an employee must:

(A) work for a covered employer (again, all public sector agencies are covered employers);

(B) have worked for the covered employer for at least 12 months;

(C) have worked on the job at least 1250 hours in the 12 months preceding the date the leave began; AND

(D) worked at a work site or location that employs at least 50 employees within a 75 mile radius.

The Court concluded that a public employee working at a worksite that has less than 50 employees within the 75 mile radius of the worksite was not an “eligible employee” for FMLA (due to the “FMLA 50/75 – Employee Threshold,” or “50/75 rule,” exclusion).3 Thus, if a public employer does not meet this 50/75 rule criteria, while technically defined as an “employer” under the Act, the employees at that location of the employer would not be covered by the provisions of the FMLA. Consequently, public agencies with work sites with less than 50 employees may want to evaluate how they address the FMLA health/medical leaves.4

In the Tilley case, the public employer would not have been subject to the FMLA, but because the Road Commission in its personnel policies provided that its employees would be eligible for FMLA benefits, the FMLA would apply. The Court concluded that even though the Kalamazoo County Road Commission employees were not eligible for FMLA coverage under federal law, the Employer’s inclusion of FMLA benefits within the personnel manual barred (estopped) the employer from refusing to grant FMLA benefits to its staff. The Court found that by representing to its staff through its personnel manual or handbook that they were eligible for FMLA benefits, the employer became obligated to provide these benefits even though they would otherwise not have been “covered employees.” Based on this decision, for those employers that do not meet the “50/75 rule” because they have fewer than 50 employees within a 75 mile radius of one work site, a review of your personnel manuals and/or labor contracts as it relates to the FMLA is recommended. The inclusion of provisions within those manuals and/or contracts that represent FMLA eligibility may have the legal effect of extending FMLA benefits beyond the scope of the actual federal law.

1 Tilley v Kalamazoo County Road Comm, 777 F3d 303 (CA 6, 2015).
2 29 USC §2611(4).
3 29 USC §2611(2)(B).
4 As Michigan courts have been found to be separate employers under Michigan, they may also be separate employers under the FMLA and the 50/75 rule. Judges of 74th Judicial District v Bay County, 385 Mich 710 (1971); Rollins v Wilson County Government, 154 F3d 626 (CA 6, 1998); Braden v County of Washington, 749 F Supp 2d 299 (WD Pa, 2010).