More and more employees are working remotely these days.  So, what does an employer do when an employee who works from home—more than 75 miles from the employer’s office—requests FMLA leave? 

To be eligible for FMLA leave, the employee must have:
- Worked for the employer for 12 months;
- Worked 1,250 hours in the previous 12 months prior to the leave beginning; 
- Worked at a site with at least 50 other employees within 75 miles of the worksite.

With regard to the last requirement, some employers are quick to assume that if the employee works from home, then the employee’s “worksite” is his or her residence and, therefore, deny FMLA leave.  Slow down!  Employers be on notice, the FMLA regulations make clear that for remote employees, including those who telecommute, their personal residence is not their worksite. 

Instead, their worksite is either:
- The site from which their work is assigned
- The site to which they report.

29 C.F.R. §825.111(a)(2).  The same is true for employees who have no fixed worksite, such as construction workers, transportation workers (i.e., truck drivers, pilots), and salespersons.

Importantly, employers need to include remote employees in the headcount for determining FMLA eligibility.  Consider an employer who has an office in South Carolina with 40 employees, an office in Oklahoma with 20 employees, and has 15 employees who work from home and reside in New York, Mississippi, and California.  Employers first must determine the worksite for each remote employee (using the options above) and then figure out if that particular worksite employs at least 50 employees within 75 miles of the worksite.  If all 15 remote employees report to or have their work assigned from the South Carolina office, their worksite will be considered South Carolina under the FMLA.  Therefore, all the employees in South Carolina and all the remote employees (despite how far away they are) would be eligible for FMLA leave. 

Keep in mind that some states have their own FMLA regulations, and, as such, further inquiry in some circumstances may be in order.  If you are an employer who needs assistance navigating the complicated nuances of the FMLA, contact your employment and labor attorney at Nexsen Pruet.