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In short, yes, employees who telework are eligible for 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.

So, how does that analysis work when employees work remotely?

The determination of whether an employee has been employed for at least 12 months and has at least the required hours is made as of the date FMLA leave is to start.

The U.S. Department of Labor provides a mechanism for determining how the 50 employee /75 mile rule works for remote workers.

  1. Determine when to start counting when 50 employees work within 75 miles. This determination is made when the employee gives notice of the need for leave.
  2. Determine if 50 employees work within 75 miles. For FMLA eligibility purposes, when an employee works from home or otherwise teleworks, their worksite is the office to which they report or from which their assignments are made. The employee’s personal residence is not a worksite.

The Department of Labor provides this example:

Employee B works in data processing for an advertising company headquartered in a large city and teleworks from her home more than 75 miles away. Many of the employees in Employee B’s department telework from different cities and states. All teleworking employees are assigned projects for data analysis from the manager who works at the company headquarters. Employee B’s worksite, for FMLA eligibility determination, is the company’s headquarters.

The company’s headquarters is also, under the FMLA, the worksite for the data processors in Employee B’s department who telework from different cities and states but report to and receive assignments from their manager at headquarters. There are 300 total employees who work at or within 75 miles of the company’s headquarters. Thus, the employee is considered to be employed at a worksite where 50 or more employees are employed by the employer within 75 miles of that worksite even though she herself does not work within 75 miles of the company headquarters.

We will continue to monitor new developments which arise out of a changing workforce.  If we can put our experience to work for you, please give us a call.

Jennifer Weaver and Will Cherry

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