Q: Even though we don't employ enough workers to be subject to the FMLA, we would like to offer FMLA leave to our employees. Is that OK?
A: You may offer employees as much leave time as you choose, and for all the reasons (and more, if desirable) that would otherwise be FMLA qualifying, but calling it FMLA is not advisable.
Federal and state Family Medical Leave Act laws have specific jurisdictional standards defining which businesses, workers, and situations are covered.
Those standards are also the criteria that federal and state labor departments and courts apply in determining whether a complaint may be accepted and processed. If the facts and allegations of a complaint do not meet the jurisdictional requirements of the law, the labor department or court lacks legal authority to address the matter.
In labeling a leave program or an employee's absence as FMLA leave in a situation where the jurisdictional standards are not met, you may be creating unfounded employee expectations that certain rights apply and certain remedies are available.
This could lead to a situation where an employee files a complaint that lacks legal status but that, nonetheless, costs your business considerable time and money in preliminary court or administrative proceedings. In other words, you don't want to hear "case dismissed," when the need for that conclusion could have been avoided with more careful packaging of your time-off program.
If you are inclined to offer leave that tracks FMLA in whole or in part, we suggest what might be characterized as an "FMLA-lite" policy. Call it something other than FMLA leave (perhaps, "Leave of Absence for Family/Medical Needs") and include some specific disclaimer language clearly noting that the company does not employ a sufficient number of employees to be covered by the federal or state FMLA leave laws.
If your employment levels increase to the point where your company is covered under the federal or state FMLA laws, you will need to notify employees and revise your leave policy accordingly.