Under the federal Family and Medical Leave Act (“FMLA”), eligible employees who work for covered employers may take up to 12 weeks of job-protected leave in a 12-month period. In order to qualify for FMLA leave, an employee must (1) have worked for the covered employer for at least 12 months (although those months do not have to be consecutive), (2) have worked at least 1,250 hours in the 12 months preceding the leave, and (3) work at a location where the employer has at least 50 employees within 75 miles. Most employers are familiar with these requirements and routinely apply them when evaluating leave requests under the FMLA. But determining whether employees are FMLA eligible is not always easy as it seems. In particular, the third requirement—sometimes called the “50/75 Rule”—poses challenges for employers with remote workforces. How should employers handle FMLA leave requests for fully remote workers who do not physically attend any work site?
The U.S. Department of Labor’s Wage and Hour Division, which is responsible for enforcing the FMLA, has addressed this issue in a Field Assistance Bulletin. According to the DOL, to determine whether the remote worker works at a worksite with at least 50 employees employed within a 75-mile radius, the employer should consider the physical office where the employee reports or receives assignments. In other words, for FMLA purposes, the employee’s home is not considered a worksite. This means that employers cannot deny FMLA leave by considering the employee’s residence as the worksite and counting the number of employees who work there as one.
Instead, employers who receive an FMLA leave request from a remote worker must look to the office where the employee reports or receives assignments in determining whether the employee is eligible under the FMLA. If at least 50 employees are employed within 75 miles of that location, then the remote worker will satisfy the 50/75 Rule for FMLA eligibility. Further, in determining how many employees work within 75 miles of that worksite, the employer should include all employees who work remotely but report to or receive assignments from that worksite. This means that worksites with fewer than 50 in-person employees may still satisfy the 50/75 Rule if enough remote workers report to or receive assignments from that office. This is a subtlety in the law that many employers may overlook.
So, how does this work in practice? Let’s say Jane is an employee who works in marketing for a company headquartered in Raleigh, North Carolina. Jane works on a fully remote basis from Asheville, North Carolina, which is more than 75 miles away from Raleigh. She has never stepped foot in the Raleigh office. A total of 40 employees work in-person at the Raleigh headquarters, while Jane and 11 other marketing employees work remotely from cities more than 75 miles away from Raleigh. The entire marketing department reports to and receives all of its assignments from the chief marketing officer, who works in the Raleigh headquarters. Jane has requested to take FMLA leave, and she meets the length of service and hours requirements. Assuming the company is a covered employer under the FMLA, is Jane an eligible employee who can take FMLA leave?
Under this fact pattern, yes, Jane would be eligible for FMLA leave because she satisfies the 50/75 Rule. For FMLA purposes, Jane’s worksite is the company’s headquarters in Raleigh, because that is where her supervisor is based and from where she receives her assignments. The total number of employees who are considered to work at the Raleigh headquarters is 52, because 40 employees work in-person there, and Jane plus the other 11 remote marketing workers all receive their assignments from that office. Accordingly, Jane is considered to work at a worksite that employs at least 50 employees within a 75-mile radius, even though she and many of her coworkers live and telework from cities far away from Raleigh. Furthermore, under this same logic, any of the 40 workers at the Raleigh office also would meet the 50/75 Rule.
Given this, employers that shifted to hiring more remote workers after the COVID-19 pandemic should take caution in evaluating whether their employees are eligible for FMLA leave. Employers should also be mindful that FMLA determinations are often fact-specific and an individual employee’s eligibility is not always as clear as it initially may seem. For example, a federal court in Texas recently grappled with a difficult fact pattern where a fully remote employee nominally reported to a supervisor in Texas, but the supervisor channeled work to the employee directly from the company’s headquarters in Ohio. The court ultimately left it to a jury to decide whether Texas or Ohio was the remote employee’s “worksite” under the FMLA. The court explained that it was unclear whether the Texas supervisor truly assigned the employee’s work or simply passed along assignments that originated from the Ohio headquarters.[1] This illustrates that determining remote workers’ worksites for FMLA purposes can be a difficult and fact-intensive exercise which, if done improperly, can lead to expensive litigation.
For this reason, it is important for employers to consult with counsel in the face of FMLA leave requests from remote workers, especially if in doubt as to how to calculate the total number of employees within 75 miles of the relevant worksite. Employers should also be mindful that some states have different requirements for sick leave and family and medical leave, many of which provide more generous coverage for employees than the federal FMLA does. Furthermore, unlike the federal FMLA, which requires unpaid leave, some states—including, but not limited to, California, New York, and New Jersey—require paid sick leave. Even still, some localities like San Francisco and Los Angeles have paid sick leave requirements that differ from state law requirements and apply to remote workers in those cities. In light of this patchwork of applicable federal, state, and local laws, employers with large remote-work populations across various states should consult with counsel to ensure that their leave policies and practices are compliant.
[1] See Landgrave v. Fortec Med., Inc., 581 F. Supp. 3d 804 (W.D. Tex. Jan. 25, 2022), available online at https://scholar.google.com/scholar_case?case=10261261645626025907&hl=en&as_sdt=6&as_vis=1&oi=scholarr.
