In its first opinion letter of the year, FMLA 2020-1-A, the Department of Labor addressed whether a combined health district in Ohio must count the employees of the county in which the health district is located for the purpose of determining FMLA eligibility. As many are aware, employees are FMLA eligible when they work for an employer with 50 or more employees within 75 miles of their worksite. See 29 U.S.C. § 2611(2)(B)(ii). The question of whether or not a county agency, like a county health district, must calculate all county employees when determining FMLA eligibility has long been a complex question and the source of confusion for many county officials.
Previously, the “determinative factor” was whether the two agencies in question were treated separately for statistical purposes in the Census of Governments issued by issued by the U.S. Census Bureau. 29 C.F.R. § 825.108(c)(1). In 2008, the DOL revised the regulations to include several employment-related factors. Those factors are: “(1) whether the two agencies have separate payroll systems; (2) whether they have different retirement systems; (3) whether they have separate budgets and funding authorities; (4) whether each has the authority to sue and be sued in its own name; (5) whether they have separate hiring and other employment practices; (6) whether one employer controls the appointment of officers of the other agency; and (7) how state law treats the relationship between the two agencies.”
Based on these factors, the DOL found that the county health district and the county were not the same public agency, meaning that the health district does not need to include all county employees when determining whether its employees are FMLA eligible. The DOL noted that the latest census counted the health district as an entity “subordinate” to the county. However, consistent with the revised regulations, the department also noted that the census is only one factor in making the eligibility determination, and that the employment-related factors outweighed the district’s treatment by the census bureau in this particular case.
The DOL also reiterated its position that “[w]hether two agencies are of the same State or local government constitute the same public agency can be determined only on a case-by-case basis.” 29 C.F.R. § 825.108(c)(1). However, the opinion letter does help clarify a difficult question facing many Ohio counties.
The attorneys at Fishel Downey Albrecht & Riepenhoff, LLP routinely advise public and private employers on compliance with the FMLA and other state and federal regulations. If you have any questions about this or any other matter, please contact us at info@fisheldowney.com or call 614.221.1216.