By Michael Burns, ASE
A recent article published in CCH HRAnswersNow Expert Insights looks at the issue of FMLA coverage for remote workers. In this case, a person worked from their home which was well outside what could be reasonably considered within the coverage area of the FMLA.
The law states that FMLA coverage is applicable to private employers with more than 50 employees within a 75-mile radius distance of the employee’s worksite when the employee meets the other qualifying conditions of
- being employed for at least 12 months,
- being employed for at least 1250 hours during the immediate 12-month period before the leave and
- meets the above geographic proximity to the employer they are covered by the FMLA.
As we see more in today’s work environment, what if the employee is working from their home and the home location is farther than 75 miles from the workplace? Should they count toward meeting the 50-employee requirement if their main worksite is over 75 miles away?
The FMLA does not address this specifically. The U.S. Department of Labor’s regulations state that an employee with no fixed worksite should be treated as working from the home base (home office) to which they are assigned work from. For workers that have to travel for their work, the regulations do state the personal residence is not to be considered the worksite. Other than the traveling worker, employees that work from home should be treated as telecommuting or working under a flexi-place arrangement from their home office. Again, putting the remote worker’s home base the office by which they receive assignments from.
The article reports on a recent Texas court decision that looked at a remote worker that was denied FMLA because her homebase was determined to be her worksite. In this case the employee worked out of her home in Texas, reported to a supervisor also in Texas, but the office where she received her assignments was in Ohio. That Ohio office did have more than 50 employees but not in Texas where the company argued was her worksite or where she was assigned work.
The Court denied a motion for summary judgement. This decision was based on the employer’s inability to prove the Ohio office was her homebase. For FMLA purposes, the Court stated (using the Worker Adjustment and Training Notification Act as a guide source, the employee’s home base “must at a minimum be a location at which the employee is physically present at some point during a typical business trip.”) The Court in this case also questioned where the worker’s assignments originated from. Thirdly the Court questioned whether the worker was really supervised out of Ohio or more so in Texas where her supervisor was located
The case ends there because the parties entered into a confidential settlement agreement, but it provides some indications as to how employers should look to identify worksites for FMLA coverage purposes.
The authors of the article suggest three options to determine remote worker FMLA coverage:
- Most larger, covered employers extend FMLA to their entire workforce as a matter of fairness/equity.
- The employer determines by “affirmatively assigning either a reporting site or and assignment site and then ensuring that such worksite meets the requirement of 50 or more employees within 75 miles.” The article forewarns that this may cause a kind of paradox where the assigned worksite is never in fact used by the remote employees. That situation would undermine, the article points out, the employer’s designation as the reporting site. The same principle would apply to the designation of “an assignment site” where no assignments are ever or hardly ever made. Those situational facts may bely the employer’s designation.
- The third approach, based upon the Texas Court case outlined above, has the employer analyzing the remote workforce on a case-by-case basis, employee by employee, to determine if they meet the 50-employee 75-mile criteria for coverage. If they do not meet that criterion, they would not be eligible for FMLA.
Employers that plan on continuing remote work where the employee never comes into a worksite office, are advised to look at remote workers’ eligibility, not only through the distance from the worksite but also how the workflows of the business occur to track employee worksites appropriately for FMLA coverage determination.
Source: Article by Brian Mead and Dawn Peacock. McDermott Will & Emory law firm published in CCH HR Answers Now Expert Insights 9/14/2022