Opinion Number ( 1997 )

Dear Ms. Anthony:

By Resolution of the Louisiana Board of Veterinary Medicine ("Board"), you have been directed to request an opinion from our office as to whether the Family and Medical Leave Act applies to the Board.

The Family and Medical Leave Act, 29 U.S.C. § 2601 et seq., ("FMLA"), defines what is considered an "eligible employee" in § 2611 (2), which reads:

A. The term "eligible employee" means an employee who has been employed —

(i) for at least 12 months by the employer with respect to whom leave is requested under section 2612 of this title; and

(ii) for at least 1,250 hours of service with such employer during the previous 12 month period.

B. Exclusions

The term "eligible employee" does not include —

(i) any Federal officer or employee covered under subchapter V of chapter 63 of Title 5; or

(ii) any employee of an employer who is employed at a worksite at which such employer employs less than 50 employees if the total number of employees employed by that employer within 75 miles of that worksite is less than 50.

Section 2611 (4) qualifies an "employer" for the purposes of the Act and, in part, states:

(A) In general

The term "employer" —

(i) means any person engaged in commerce or in any industry or activity affecting commerce who employees 50 or more employees for each working day during each of 20 or more calendar workweeks in the current or preceding calendar year;

(ii) includes —

(I) any person who acts, directly or indirectly, in the interest of an employer to any of the employees of such employer; and

(II) any successor in interest of an employer; and

(iii) includes any "public agency", as defined in section 203 (x) of this title.

29 U.S.C. § 203 (x) defines "public agency" as, "the Government of the United States; the government of a state or political subdivision thereof; any agency of the United States . . ., a State, or a political subdivision of the state; or any interstate governmental agency."

LSA-R.S. 37:1515 creates the Board and places it within the Department of Health and Hospitals ("DHH"). The Board is subject to review of the undersecretary of that department pursuant to LSA-R.S. 36:803.

The DHH is an agency of the state of Louisiana and, therefore, a public agency for the purposes of the FMLA. The DHH's Policy Number 8108-93, Part II, states FMLA's applicability to the DHH and mandates, "this policy shall apply to all eligible employees in the Department of Health and Hospitals." As an entity contained within the DHH, the Board is subject to FMLA's mandates.

You state that the Board employs two (2) full time employees, one (1) student employee and one (1) part-time employee. If those employees meet the "eligible employee" requirements, they are subject to the provisions of the Act.

I trust this addresses your concerns. Please contact us if you require further assistance.

Yours very truly,

RICHARD P. IEYOUB ATTORNEY GENERAL

By: ____________________________ CARLOS M. FINALET, III Assistant Attorney General

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