Does your company have employees who work remotely in a city, or a state, where your company does not maintain a physical location? Do you count those employees for purposes of determining whether the company has to offer leave under the Family and Medical Leave Act (FMLA)? Well, in what may come as a surprise, you must properly include all those employees in your calculation of FMLA eligibility.

As any employer covered by the FMLA is likely aware, for an employee to be eligible for FMLA leave, among other requirements, an employee must be employed at a worksite where the employer has at least 50 employees within 75 miles of that worksite.  Okay, so you may be thinking that a remote employee does not have to be counted, because the employee works alone at his or her home located more than 75 miles from the company’s physical location. Not so fast. Let’s take a look at the regulations interpreting the FMLA.

The regulations provide that an employee’s worksite under the FMLA will ordinarily be the site the employee reports to or, if none, from which the employee’s work is assigned.  The regulations also provide that the worksite for employees who work from home is the office to which they report and from which assignments are made.  29 C.F.R. 825.111.

So how do you count the employees who work remotely for determining FMLA eligibility? An employer will first need to determine the worksite to which each remote employee reports or from which the employee’s work is assigned.  After figuring out whether to count the remote employee for the particular worksite, then the employer should determine whether it employs at least 50 employees within 75 miles of the worksite.

So what happens if your company forgot to count the employees who work remotely? Now’s the time to get in compliance with the FMLA. An employer should determine the worksite from which each remote employee should be deemed to work and include those employees in the headcount of employees employed at the worksite for FMLA purposes. If the new headcount results in a change to more than 50 employees being employed within 75 miles of the worksite, an employer would be wise to check whether employees who previously submitted requests for leave under the FMLA should in fact have been provided with leave under the FMLA.