Employers are more open to having remote employees than they used to be. This lasting effect of the Covid-19 pandemic has prompted new questions under the Family and Medical Leave Act about how to count the number of employees at a workplace.
To be eligible for leave under the FMLA, an employee must have worked for a covered employer for at least 12 months, with at least 1,250 hours worked. The employee also must work at a location where the company has at least 50 employees within a 75-mile radius at the time the employee requests the leave.
How to Categorize Remote Employees
The Department of Labor issued guidance earlier this year that addresses telework and how remote employees should be counted to determine if they qualify for FMLA leave. The DOL concluded that remote employees should be counted based on the office or workplace to which they reported or, if none, where their work assignments are generated.
Remote employees who don’t physically report to a worksite will be deemed part of the worksite where their assignments originate. If a remote employee receives assignments from a worksite that has at least 49 on-site employees, the remote employee will be eligible for FMLA leave, provided they’ve worked the requisite time periods.
The guidance also suggests there should be no difference whether an employee works completely remotely or on a hybrid office schedule. This method of calculating the number of employees allows both employees and employers to maintain the flexibility of remote work without affecting FMLA eligibility.
An employee who works in a remote part of the country—even if they’re the only employee in that state or if they never set foot in the worksite—can be eligible for job-protected FMLA leave if they report into or receive assignments from a qualifying worksite.
The latest guidance is in line with how FMLA regulations treat employees who don’t have a fixed worksite, such as transportation workers and salespersons. A personal residence isn’t a worksite for FMLA eligibility purposes, and these employees are counted for FMLA purposes based on their “home base,” which is where they report into or the worksite from where their assignments are made.
The latest guidance extended this analysis to teleworkers such that, for FMLA eligibility purposes, their worksite is the office to which they report or from which their assignments are made.
Specific cases may be complicated, however, and the issue of an individual employee’s eligibility may not always be clear cut. In Landgrave v. ForTec Med., issued in 2022, the court was presented with the issue of whether a remote employee qualified for FMLA leave because there weren’t 50 or more employees working within a 75-mile radius of her home where she worked.
Further complicating the case, the employee also received her work assignments from another remote worker. The court determined that what constituted the worksite was a disputed fact issue that should be decided by a jury.
Anticipating Leave Requests
When determining an employee’s eligibility for FMLA leave, employers must count all employees who either report to or receive assignments from the employee’s designated or assigning worksite. When faced with an FMLA request from a remote employee, employers must evaluate where the remote employee’s work originates.
Although not addressed in the guidance, this likely also impacts an employee who works at a worksite with fewer than 50 employees if work is assigned out of that worksite to enough remote workers that the threshold is met.
In view of the DOL’s guidance, employers would benefit from designating the worksite of a remote employee at the time of hire so this can be factored in when evaluating an FMLA leave request. Employers may want to seek assistance from an employment attorney to properly determine FMLA eligibility.
This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.
Author Information
Heather R. Boshak is a partner in Fox Rothschild’s labor and employment department. She advises employers on compliance with federal and state laws and regulations and represents businesses in employment litigation and dispute resolution.
Kelly L. McNaughton is an associate with Fox Rothschild’s labor and employment department. She provides legal advice to companies of all sizes on workplace policy and litigation.
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