The Devil Is In The Detail – FMLA Eligibility And Remote Workers

Jackson Lewis P.C.
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With the increasing trend of telecommuting employees, it is not uncommon for a company to have small numbers of employees working from remote locations in various states. It is important that employers understand how FMLA eligibility is determined for remote workers.   Some incorrectly believe that a work-at-home employee cannot qualify for FMLA if the home from which they work is not in proximity of 49 other company employees or within 75 miles of a company worksite.

The FMLA regulations state that an eligible employee under the FMLA must, among other things, be “employed at a worksite where 50 or more employees are employed by the employer within 75 miles of that worksite.” 29 C.F.R. § 825.110(a)(3).

The FMLA regulations do not define “worksite.” However, Section 825.111(a)(2) of the regulations, which address how to determine whether 50 employees are employed within 75 miles, states:

An employee’s personal residence is not a worksite in the case of employees, such as salespersons, who travel a sales territory and who generally leave to work and return from work to their personal residence, or employees who work at home, as under the concept of flexiplace or telecommuting.  Rather, their worksite is the office to which they report and from which assignments are made.

As such, a remote employee’s worksite can be a location where they do not physically work.

For example, ABC Company employs 49 workers who are based and work out of its Atlanta, Georgia headquarters. ABC also employs Sally, who works from home in Orlando, Florida. Sally gets her assignments from her manager who works at the company’s Atlanta headquarters. Under the FMLA, Sally’s worksite is Atlanta.

This is one example of the many intricacies of the FMLA regulations. The FMLA also has special rules for employees who have no fixed worksite, such as construction workers. In those situations, the worksite is the site to which the employee is assigned as their home base, from which their work is assigned, or to which they report. The FMLA regulations provide the following example to illustrate this nuance:

[I]f a construction company headquartered in New Jersey opened a construction site in Ohio, and set up a mobile trailer on the construction site as the company’s on-site office, the construction site in Ohio would be the worksite for any employees hired locally who report to the mobile trailer/company office daily for work assignments, etc. If that construction company also sent personnel such as job superintendents, foremen, engineers, an office manager, etc., from New Jersey to the job site in Ohio, those workers sent from New Jersey continue to have the headquarters in New Jersey as their worksite. The workers who have New Jersey as their worksite would not be counted in determining eligibility of employees whose home base is the Ohio worksite, but would be counted in determining eligibility of employees whose home base is New Jersey.

29 C.F.R. § 825.111(a)(2)

The examples above are two of the many intricacies of the FMLA.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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