FMLA: Telecommuters, Offsite Employees And The Modern Workplace

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As organizations across the United States continually redesign the concept of "the office," employers are required to adhere to employment laws that are not well-equipped to deal with the modern workplace. The Family Medical Leave Act is a good example of one such law.

Take, for example, a web-design company with 95 employees. Assume this Company has only two offices, one in Michigan that employs five employees and one in California that employs 45 employees. The remaining 45 employees are telecommuters, scattered across the country, work from home, and none are within 75 miles of each other or the two corporate offices. Are any of these employees eligible for FMLA leave? As you might expect, the answer is not a simple one.

There is little doubt the Company is covered by the FMLA. Regulations state that employers who employ 50 or more employees for each working day during 20 or more calendar workweeks in either the current or preceding calendar year are covered by the FMLA. 29 USC § 2611. For purposes of this calculation, it does not matter whether the employees are full or part-time, whether they have actually been paid during those previous 20 workweeks, or whether they are on paid or unpaid leave (unless there is reasonable likelihood that they will not return to work). Id.

However, just because the employer is covered does not mean that all, or any, of its employees are eligible for FMLA leave. An employee is eligible for FMLA leave if he or she currently works at a site where the employer employs 50 or more employees within a 75 mile radius (in addition to some temporal requirements). 29 USC §2611(2)(B)(ii); 29 CFR 825.110(a). At first glance, then, it would appear that none of the Company's employees work at a site where there are at least 50 employees. Digging a bit deeper, though, we see the regulations on the FMLA explain that a "worksite" refers either to a single location, a group of contiguous locations, or separate areas in reasonable geographic proximity, used for the same purpose, and sharing the same staff and equipment. 29 CFR 825.111(a). For employees who work remotely, such as out of their home office, their personal residence is not a worksite. Instead, those employees' worksite is the office to which they report and from which assignments are made. 29 CFR § 825.111(a)(2). In other words, to determine which of its employees are eligible for FMLA leave, the Company must determine the "home base" of each one of those telecommuters.

Now, let's assume that all 45 telecommuting employees report to the Michigan location and none to California. Based on the regulations, the five employees in Michigan and all 45 telecommuting employees—regardless of where they live in the U.S.—will be eligible for FMLA leave since, combined, they total 50 employees. Conversely, the 45 employees in the California corporate office will not be eligible for FMLA leave.

This result is likely not what Congress had in mind when contemplating FMLA leave for companies with multiple locations and telecommuting employees. Surely, the employees at the Michigan office would be heavily burdened if just 1 of the 5 employees took FMLA leave, while the California office would likely not miss a beat if 1 of its 45 employees went on leave. Similarly, assuming there's a geographically strategic reason for the location of the 45 telecommuters, the Company could lose its presence in an area should the telecommuter assigned to that area take FMLA leave.

As workplaces change, so must the laws governing them. Unfortunately, with technology facilitating change at an increasingly rapid pace, it is unlikely our laws will ever be able to keep up.