Determining remote employees’ eligibility for FMLA, MA Paid Family and Medical Leave

Private-sector employers that have approved remote work for an increasing number of their employees may have wondered whether they remain “covered employers” under the federal Family Medical Leave Act (FMLA) and whether their out-of-state employees are still eligible for FMLA leave. After all, it’s not unusual to have employees spread across the country, with only a few in each state. And what about coverage under state leave laws like the Massachusetts Paid Family and Medical Leave Act (MA PFML)?

FMLA: Covered employers and eligible employees

Under the FMLA, private-sector employers that employ 50 or more employees in 20 or more workweeks in either the current or preceding calendar year, regardless of location, are considered “covered employers.”

It’s relatively easy to determine whether you meet that test. Employees who must be counted include:

• Those who work in the United States or any U.S. territory or possession;
• Those whose name appears on payroll records (regardless of whether any compensation is received for the workweek);
• Those on paid or unpaid leave (including FMLA leave, leaves of absence, disciplinary suspension, etc.), as long as there is a reasonable expectation they will return to active employment;
• Those who work for foreign firms operating in the United States; and
• Part-time, temporary, seasonal, and full-time employees.

Whether an employer is covered is determined at the time the employee’s leave is set to begin.