In short, yes, employees who telework are eligible for Family Medical Leave Act/ FMLA leave on the same basis as employees who report to any other worksite to perform their job. An employee who has worked for an employer for at least 12 months, has at least 1,250 hours of service for the employer during the 12-month period immediately preceding the leave, and works at a location where the employer has at least 50 employees within 75 miles is eligible for FMLA leave.
When the FMLA was enacted in 1993, the idea of working remotely was rare, but now, and especially post-pandemic, many companies have accepted employing remote workers, either full-time or on a hybrid schedule. However, this has introduced new questions under the FMLA, regarding remote worker eligibility.
In 2023, the Department of Labor’s Wage and Hour Division issued a Field Assistance Bulletin that addressed how remote employees should be counted to determine if they qualify for FMLA leave. The bulletin notes that for FMLA eligibility purposes, “the employee’s personal residence is not a worksite.” It adds: “When an employee works from home or otherwise teleworks, their worksite for FMLA eligibility purposes is the office to which they report or from which their assignments are made.”
Thus, if the requisite number of employees are employed within 75 miles from the employer’s worksite, which is the location to which the employee reports or from which their assignments are made, the employee meets the requirement for FMLA eligibility. Teleworking employees are included in that count and are eligible for FMLA leave, provided they have worked the requisite number of hours.
Several employment experts recommend affirmatively assigning either a reporting site or an assignment site to the employee when they are hired, and then determining if that worksite meets the requirement of 50 or more employees within the 75 miles.
In the bulletin, the DOL urges: “Employees can have the flexibility of work from home, telework, or work away from premises managed or controlled by the employer and also remain covered by the protections of the FLSA and the FMLA.”
Sources: dol.gov; govdocs.com
By Linda Oljniczak, courtesy of SBAM-approved partner, ASE
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