FMLA: Determining Headcount with Remote Employees
On February 9, 2023, the Department of Labor issued official guidance on the Family and Medical Leave Act (FMLA), specifically, how to determine whether an employer has 50 employees within 75 miles of the jobsite of a remote employee. As we have discussed in webinars and other blog posts, the remote employee’s jobsite is the place where the employee works, subjecting the employee to coverage under the labor laws of the state in which the employee physically performs the work.
To be eligible for leave under the FMLA, an employee must work at a worksite where 50 or more employees are employed by that employer within 75 miles of that worksite. So when your remote Vermont employee, working 1,200 miles from your 49-employee office in Tennessee, requests FMLA leave, you think it’s an easy no. Right?
Not according to the DOL. Yesterday’s guidance states that the count of employees within 75 miles of a worksite includes all employees whose worksite is within that area, including employees who telework and report to or receive assignments from that worksite. If one of your 49 Tennessee employees is assigning work to or supervising the performance of your Vermont teleworker, you have 50 employees within 75 miles of your Tennessee office-and your remote worker is one of them, making her eligible for FMLA leave if she meets all other requirements for eligibility.
The DOL has stated that the determination of an employee’s worksite is a fact specific analysis and is based on factors such as where the employee reports to work or the location where the employments are made. An employee’s worksite could be determined to be the corporate office for FMLA purposes even if the employee’s supervisor is also a remote worker, if the assignments or the work needed to be done is generated through processes taking place in the corporate office and flowing through the supervisor. When a remote employee requests FMLA leave don’t dismiss it out of hand. Stop, think, remember the DOL guidance, and contact the expert HR and employment law attorneys at myHRcounsel to walk you through all things FMLA and ensure compliance for your company.
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