With the advent of more remote work, many employers have been unclear on how to determine if a remote employee, often working from home, meets all the eligibility requirements related to FMLA. In particular, the employer must determine whether to apply the condition that the employee must work at a location that employs at least 50 people within a 75-mile radius (often called the 50/75 rule). On February 9, 2023, the Department of Labor released Field Assistance Bulletin No. 2023-1, which among other things, provided guidance on the application of FMLA for remote workers.
A quick review of employee eligibility reminds us that federal FMLA requires covered employers to provide up to 12 weeks of protected leave in a defined 12-month period for eligible employees. Eligible employees are defined as those who, at the time leave is requested:
- Have worked for the company for a period of 12 months (which need not be continuous),
- Have worked 1,250 hours in the 12-month period immediately preceding the start of the leave, and,
- Work at a location with at least 50 employees within a 75-mile radius.
Although the FMLA does not directly address remote workers, it does specify that an employee’s personal residence is not a worksite for employees who work from home via a telecommuting arrangement. The Act also states that "…for employees with no fixed worksite … the worksite is the site to which they are assigned as their home base, from which their work is assigned, or to which they report." 29 C.F.R. § 825.111(a)(2).
With this guidance in mind, employers need to determine 1) which worksites are eligible, using the 50/75 rule, and 2) which employees are eligible because they report to those worksites, regardless of the employees’ physical locations. The DOL provided several examples:
Employee A works for a department store as a customer service representative. Following a weather emergency, the store is temporarily closed to everyone except essential personnel and building maintenance staff. Employee A and her supervisor perform their duties by teleworking from their homes during the period the store is temporarily closed. For FMLA eligibility purposes, the store remains Employee A’s and her supervisor’s worksite.
Employee B works in data processing for an advertising company headquartered in a large city and teleworks from her home more than 75 miles away. Many of the employees in Employee B’s department telework from different cities and states. All teleworking employees are assigned projects for data analysis from the manager who works at the company headquarters. Employee B’s worksite, for FMLA eligibility determination, is the company’s headquarters. The company’s headquarters is also, under the FMLA, the worksite for the data processors in Employee B’s department who telework from different cities and states but report to and receive assignments from their manager at headquarters. There are 300 total employees who work at or within 75 miles of the company’s headquarters. -Thus, the employee is considered to be employed at a worksite where 50 or more employees are employed by the employer within 75 miles of that worksite, even though she herself does not work within 75 miles of the company headquarters.
Employers should not deny remote workers’ requests for FMLA, assuming they do not meet the 50/75 rule. A careful, fact-specific analysis of reporting relationships, where work is assigned, and other factors must be undertaken to determine if a remote employee meets the requirement.