Working Together

In our post-COVID world, it is common for employers to hire fully remote employees who work out of state. One of the challenges many employers face in this remote-work world is how to address complicated HR issues such as leaves of absence for those remote employees, including whether such employees are eligible for medical leave under the federal Family and Medical Leave Act (FMLA).  (Note: this blog post addresses issues only under the federal FMLA, not under any state FMLA.)

As most employers already know, managing FMLA leaves of absence is often a complicated and frustrating process. To be eligible for leave under the federal FMLA, an employee must (1) have worked for the employer for at least 12 months, (2) have at least 1,250 hours of service for the employer during the 12-month period immediately preceding the leave, and (3) work at a worksite where the employer has at least 50 employees within 75 miles.

The question is: where is the remote worker’s “worksite”?  If your answer is that the remote employee’s “worksite” is their home, you would be wrong.  At least according to the U.S. Department of Labor.

In 2023, the U.S. DOL released guidance, buried in a field assistance bulletin, clarifying this issue. According to Field Assistance Bulletin 2023-1:

For FMLA eligibility purposes, the employee’s personal residence is not a worksite…When an employee works from home or otherwise teleworks, their worksite for FMLA eligibility purposes is the office to which they report or from which their assignments are made. Thus, if 50 employees are employed within 75 miles from the employer’s worksite (the location to which the employee reports or from which their assignments are made), the employee meets that FMLA eligibility requirement.

Significantly, this guidance now requires employers to consider the physical office location remote employees report to and receive their work from as being the “worksite” for purposes of determining FMLA eligibility. The DOL’s guidance contains a helpful example illustrating how this analysis works in the real world:

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 working at a site where the employer has 50 or more employees within a 75-mile radius, even though she herself does not work within 75 miles of the company headquarters.

So, why is this important for employers? In short, if a fully remote employee’s “reporting office” employs 50 or more employees within a 75-mile radius, and if they meet the 12-month and 1,250-hour requirements, the employee is generally eligible for federal FMLA leave. Therefore, employers cannot treat a remote worker as a one employee worksite, which would not be a large enough worksite for the employee to qualify for federal FMLA. Instead, the employer must evaluate whether the remote employee’s “reporting office” employs 50 or more employees within a 75-mile radius.  If that is the case, then the remote worker would be eligible for federal FMLA leave.

Importantly, the guidance also explains that “[t]he count of employees within 75 miles of a worksite includes all employees whose worksite is within that area, including employees who telework and report to or receive assignments from that worksite.” This means that employers must also count any remote employees who report to or receive assignments from a given worksite towards the 50-employee threshold.

One important note:  we are not aware of any lawsuits challenging Field Assistance Bulletin 2023-1 as improper agency rulemaking.  So, unless or until the rule is invalidated by a court, it must be followed.

Of course, when it comes to FMLA determinations, specific cases are often unique and complicated and the issue of an individual employee’s eligibility is not always clear cut. Compliance with the complicated requirements of the federal FMLA (as well as state specific FMLA laws) remains a significant challenge for many employers. Our Labor and Employment attorneys work closely with employers to navigate these types of complex issues and can assist your organization in understanding its obligations and maintaining compliance. Please contact any of our Labor and Employment Law attorneys for more information.