Are remote workers eligible to take FMLA leave?

I’m presenting on HR compliance issues for remote workers today (via Zoom, naturally).

The Family and Medical Leave Act (FMLA) is among the topics I plan to cover. And part of that discussion will involve whether remote workers are eligible to take FMLA leave. (It depends.) And how should businesses determine FMLA eligibility for remote workers? (It can be tricky.)

Employees are eligible for FMLA leave if they have worked for their employer for at least 12 months, at least 1,250 hours over the past 12 months, and work at a location where the company employs 50 or more employees within 75 miles. It’s that last part, which I’ll call the 50/75 rule, that we’ll focus on here.

The Department of Labor’s Wage and Hour Division has published an Employer’s Guide to the Family and Medical Leave Act. In that Guide, there is a section on the 50/75 Rule. And in that section, the WHD discusses remote workers.

I’ll summarize what it says about determining FMLA eligibility for remote workers.

• If the employer works remotely but reports to a particular worksite (a single location, a group of buildings, such as a campus or industrial park, or to separate facilities in geographic proximity to one another) from time to time, then use that worksite for purposes of the 50/75 rule.
• If the employee is always remote, then the worksite is the office to which they report or receive assignments.
• For employees with no fixed worksite, such as construction workers, transportation workers, and airline flight crew employees, the worksite is the place to which they report, the company assigns their work, or the company designates as their home base.

Last night, I researched whether any court had applied the 50/75 rule to remote workers. I found one federal decision involving a fully-remote employee in Texas who argued that she satisfied the 50/75 rule because she reported to and received assignments from a location in Ohio that had 50 employees within 75 miles. Conversely, the employer argued that she reported to and received her assignments from an office in Texas that didn’t satisfy the 50/75 rule.

Who won? Well, the judge had no idea who was right.

While the plaintiff technically received assignments from a person in Texas, the company routed those tasks through Ohio. Each location played some role in how the plaintiff got her work. So, a jury would have to decide which played a more significant role.

Determining the proper location based on the “reporting location” was also too difficult for the court. On the one hand, the plaintiff sent her completed assignments to Ohio. On the other, the company argued that her supervisor in Texas could discipline her. But, there was evidence that suggested otherwise. So, the judge punted the issue to the jury.

If your head is about to explode by reading all of this, perhaps you’re wondering whether you can relax the 50/75 rule and provide leave to remote workers regardless of location. You can. Also, look out for state or local laws that may be more employee-friendly.

What you can’t do is raise the bar and make it more difficult for remote workers to take FMLA leave.