Some employment laws are applicable to all businesses, such as minimum wage and hour laws. Other employment laws and regulations only kick in once a business employs a certain number of employees. Last week, we discussed when California’s sexual harassment laws kick in for cannabis employers. Today we will explore the Federal Family Medical Leave Act and its state equivalents.

marijuana employment
50 is the magic number for the FMLA.

Federal Family Medical Leave Act

Although marijuana is a federally controlled substance, cannabis businesses are subject to federal employment laws like any other business. The Family Medical Leave Act (“FMLA”) is one of those laws. The FMLA is a complicated piece of legislation and frequently trips up employers, especially ones without a human resources department.

To determine if FMLA applies, employers need to ask themselves two important questions: 1) Do we have enough employees for FMLA to apply?; and 2) Does FMLA apply to this particular employee?

FMLA only applies to employers who have at least 50 employees in 20 or more work weeks in the current or previous year. If the employer meets this, then FMLA applies as to the employer.

Only eligible employees are entitled to FMLA leave. An eligible employee is an employee who:

  1. Works for a covered employer;
  2. Has worked for the employer for at least 12 months;
  3. Has at least 1,250 hours of service for the employer during the 12-month period immediately preceding the leave; and
  4. Works at a location where the employer has at least 50 employees within 75 miles.

Employees who meet all of those criteria may take up to 12 work weeks of leave in a 12-month period for any of the following reasons:

  • The birth of a child or placement of a child with the employee for adoption or foster care;
  • To care for a spouse, son, daughter, or parent who has a serious health condition;
  • For a serious health condition that makes the employee unable to perform the essential functions of his or her job; or
  • For any qualifying exigency arising out of the fact that a spouse, son, daughter, or parent is a military member on covered active duty or call to covered active duty status.

If an employee is eligible and uses FMLA leave, the employee must be restored to their original job or an equivalent job with equivalent pay, benefits, and other terms and conditions of employment. Like all employers, cannabis employers cannot punish employees for using FMLA leave.

State Family Leave Acts

Many states, including Oregon, Washington, and California, where recreational marijuana has been legalized, have state family leave acts that are substantially similar to the FMLA.

The Oregon Family Leave Act (OFLA) applies to employers with at least 25 or more employees working in the state of Oregon. Oregon employees become eligible for OFLA leave after 180 days of employment if they averaged 25 hours per week during the 180-day period. OFLA allows eligible employees to use OFLA leave for the employees own serious health condition; a family member’s serious health condition; the birth or adoption of a child; the non-serious health condition of a child requiring home care; and bereavement leave for a family member. If an employee qualifies for both FMLA and OFLA leave, the leave runs concurrently, meaning the employee still only gets 12 weeks of protected leave. Employers are not required to pay employees for the leave under either act.

The Washington Family Leave Act (WFLA) mirrors the FMLA. Employers are covered if they employ more than 50 employees in Washington and employees are eligible under the same requirements as FMLA.

The California Family Rights Act (CFRA) allows eligible employees 12 weeks of leave in a 12-month period. CFRA kicks in for employers with at least 20 employees within a 75-mile radius. Similar to FMLA, to be eligible, employees must have worked at least one year and worked at least 1,250 hours for the employer.

Cannabis companies continue to grow and need to be aware of laws like the FMLA and their state equivalent. Cannabis companies should have a leave policy that meets the requirements of the FMLA and the state equivalent in their employee handbook. It’s best to have an expert familiar with the laws draft a leave policy.