Are My Remote Employees Eligible for Leave Under the Family and Medical Leave Act?
When the Family and Medical Leave Act (FMLA) was passed in 1993, legislators and business leaders did not contemplate largely remote workforces. In 2022, however, many companies are embracing fully remote employees, leaving many employers asking – among other things – whether those remote workers may be eligible for leave under the FMLA. Over the course of the COVID-19 pandemic, many employees have been working from home. While some workers report to a manager at company headquarters or a company worksite, many remote employees report to a supervisor who also works remotely. This new work landscape is turning what used to be an easy calculation of FMLA eligibility into a more complicated analysis.
The FMLA requires covered employers to provide eligible employees with up to 12 weeks of unpaid leave from work to care for their own serious health condition, the serious health condition of certain close family members or for child bonding. An eligible employee is one who meets all of the following conditions:
- The employee must have been employed by the employer for 12 months.
- The employee must have worked at least 1,250 hours during the 12 months prior to the start of FMLA leave.
- The employee is employed at a worksite where 50 or more employees are employed by the employer within 75 miles of that worksite.
Analyzing that last criterion has become challenging for remote workers because – according to FMLA regulations – an employee’s private residence is not a worksite for purposes of determining employee eligibility for FMLA leave. Instead, for employees who work from home, their worksite is the “office to which they report and from which assignments are made.” 29 CFR § 825.111(a)(2). In other words, home offices may not be considered the work location for FMLA purposes. Employers must consider the physical office location that these remote employees report to and receive their work from as being their work location for FMLA purposes. Therefore, if the remote worker’s reporting office employs 50 or more employees within a 75-mile radius, and if he or she meets the other FMLA requirements, the employee is eligible for FMLA leave.
In determining whether remote workers are eligible for FMLA leave, employers should consider one of the following approaches:
Everyone is eligible. Employers can take the position that the FMLA applies to all remote employees, assuming the employees otherwise meet conditions for FMLA eligibility. This is a conservative approach that will avoid legal battles but may offer more generous leave than the employees are entitled to receive. This approach may be impracticable for many smaller employers.
Eligibility Based on Reporting/Assignment Site. Under this approach, employers affirmatively and proactively assign a reporting site or an assignment site to each employee and then assess FMLA eligibility at the time of FMLA certification based on whether the worksite meets the requirement of 50 or more employees within 75 miles. Employers should make sure that the day-to-day facts support an employer’s designation by having employees assigned to a reporting site occasionally report to that location and/or making sure that an employee regularly receives assignments from the assignment location.
More than ever before, employers are allowing employees to work remotely. While there are many benefits to remote work, eligibility for leave under FMLA certainly has become more complicated. Employers considering how to approach this issue should consult with experienced human resources professionals and/or labor and employment counsel. For all MEA members, the Hotline is available to provide this assistance. For MEA Essential and Premier members, a Member Legal Services attorney are available for additional consultation.
About the Author
Amy McAndrew is MEA’s Director of Member Legal Services and has over twenty years of experience as a labor and employment attorney.