Determining FLMA eligibility for remote employees

Q         We have 140 employees working remotely across many states, and as a result, they meet three of the four Family and Medical Leave Act (FMLA) requirements but not the requirement to work at a location with 50 or more employees within 75 miles. How should we determine their FMLA eligibility?

Determining whether 50 remote employees are employed within 75 miles for purposes of FMLA coverage requires interpretation of the word “worksite” under the law. Per FMLA regulations, a worksite can refer to a single location, or it could refer to several separate facilities forming a campus. For employees who work at home, however, “worksite” is defined as the office to which they report and from which assignments are made.

Courts interpreting the provision have focused on the location from which day-to-day instructions are received or the location of the personnel who are primarily responsible for reviewing the work of remote employees. Therefore, you should determine FMLA eligibility based on the locations the 140 employees consider their home base, from which office work is assigned, or to which they report because their individual residences cannot be considered their worksite.

Jason R. Mau is a shareholder in the Boise office of Parsons Behle & Latimer. He can be reached at 208-562-4898 or jmau@parsonsbehle.com.