Does FMLA Apply to Your Small Florida Business?

Florida has other leave and anti-discrimination rules that reach smaller employers, so a small business still needs to check the facts before it responds to a leave request. This page explains how the counting and eligibility rules work, and what else may apply.

Short Answer: The 50-Employee Threshold for FMLA Coverage

Falling below that threshold does not end the question. Other laws use lower size limits, and a small employer may still have duties under them.

Owners often stop at the headcount and move on. That can miss a rule that still applies. A better approach asks three things: how many people work near the affected worksite, how long the employee has worked for you, and how many hours that employee has worked.

How an Employer Counts Employees for FMLA

Employers count employees over a period of time, not on a single day. The federal guide linked above describes how the count works for the employer’s worksites and nearby locations.

Florida’s civil rights statute uses a lower number. Under Fla. Stat. § 760.02, an employer for that law is a person employing 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year.

A count taken at only the main office can understate or overstate the picture. Write down the headcount for every site before you decide anything.

What Makes an Employee Eligible for FMLA Leave

An employee must meet tests of their own, separate from the employer’s headcount. The National Partnership guide covers these requirements.

Both sides must line up.

Hours and tenure are where small employers get surprised. Pull dated payroll and time records before you answer the request.

What Disqualifies an Employee From FMLA Leave

A covered employer can still owe nothing under FMLA to an employee who misses even one test.

Part-time and newly hired employees are the ones most often caught by these rules.

Florida also limits how an employer may end employment. Florida is an employment-at-will state, so an employer may end the job for any reason the law does not prohibit. Under Laguerre v. Palm Beach Newspapers, Inc., an at-will employee may not be fired for a reason prohibited by law, such as retaliation or unlawful discrimination. The Florida Supreme Court restated the at-will rule in Gessner v. Southern Co..

Does Florida Have Its Own Family Leave Law for Small Employers?

Florida’s rules for private employers sit in several separate statutes. Each one uses its own size limit, so check each statute against your headcount.

The Florida Civil Rights Act applies to employers with 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year. Under Fla. Stat. § 760.10, an employer may not discharge or otherwise discriminate against someone with respect to compensation, terms, conditions, or privileges of employment because of traits such as sex, pregnancy, age, or handicap. The same section bars retaliation against a person who opposed a discriminatory practice or took part in a proceeding under it.

Florida’s domestic violence leave rule uses a higher threshold, covered in the next section.

What Covered Employers Must Provide

Florida adds its own duties for employees who need time off because of domestic or sexual violence.

Under Fla. Stat. § 741.313, an employer shall permit an employee to request and take up to 3 working days of leave from work in any 12-month period if the employee or a family or household member of an employee is the victim of domestic violence or sexual violence; this leave may be with or without pay, at the discretion of the employer, and the section applies to an employer who employs 50 or more employees and to an employee who has been employed by the employer for 3 or more months. The employee must have worked for the employer for 3 or more months. The leave can cover seeking a protective injunction or getting services from a victim services organization. The employer decides whether the leave is paid.

The statute also sets out a process. Except in cases of imminent danger, the employee must give the advance notice the employer’s policy requires, along with documentation. Fla. Stat. § 741.313 provides that, except in cases of imminent danger to the health or safety of the employee, or to the health or safety of a family or household member, an employee seeking leave from work under this section must provide to his or her employer appropriate advance notice of the leave as required by the employer’s policy along with sufficient documentation of the act of domestic violence or sexual violence as required by the employer. Before receiving the leave, the employee must exhaust all annual or vacation leave, personal leave, and sick leave, if applicable, that is available to the employee, unless the employer waives this requirement.

The employer may not interfere with the leave. It also may not fire, demote, suspend, or retaliate against an employee for using it.

When an Employee Asks for Leave and You Are Not Sure What Applies

Start by sorting the request. Note the reason, the employee’s hours and start date, your headcount, and each worksite. The answer depends on the facts, and a quick guess can go wrong in either direction.

Picture a common case. A manager asks for time off for a medical condition. The owner isn’t sure whether the company’s headcount and the manager’s hours trigger FMLA. The owner may want to deny the request or approve it without thinking. Both moves carry risk.

Denying a valid request can create exposure. Under Fla. Stat. § 448.102, an employer may not retaliate against an employee who objects to or refuses to take part in a practice that violates a law, rule, or regulation.

Written policies matter too. Under Quaker Oats Co. v. Jewell, policy statements in an employee handbook generally do not create enforceable contract rights. The exception is a manual with specific language saying it is a separate employment contract.

Talk Through Your Business’s Leave Question With KEW Legal

A leave request often arrives at a busy time, and the facts may be unclear. Before you call, gather your headcount for the look-back period, each employee’s hours and start date, your worksite locations, the reason for the request, and your written policies.

KEW Legal is a Florida business law firm with an office in Coral Gables. Our team works with employers on employment law questions, including leave requests that raise coverage questions.

If an employee just asked you for leave and you’re not sure what applies, you don’t have to sort it out alone. Call 305-990-2300 or send us a message. The first consultation is free, confidential, and without obligation to continue.