Most employers know that the federal Family and Medical Leave Act (“FMLA”) applies to them if they have at least 50 employees within a 75-mile radius. But how do remote workers factor into that calculation? What if a business has 45 employees who report to the office every day in Sidney and 6 employees who work remotely and reside in Cleveland? Is that employer covered by the FMLA? In response to the recent rise of remote work, earlier this year, the Department of Labor (“DOL”) released an updated field assistance bulletin (the “Bulletin”) to provide guidance to employers who find themselves in that exact scenario. In order to stay current on the obligations under the FMLA, both generally and in light of the field assistance bulletin, now is a good time for employers to review their FMLA policies and obligations. What is the FMLA? There are many intricacies to the FMLA, but in a nutshell, the FMLA is a federal law that requires covered employers to provide up to 12 weeks of unpaid, job-protected leave per year to employees for certain situations. An employee is eligible for FMLA leave if they have worked for a covered employer for at least 12 months, with at least 1,250 hours worked. The employee also must work at a location where the company has at least 50 employees within a 75-mile radius at the time the employee requests the leave. An employee can use FMLA leave for a variety of specified reasons, including: When employees return from FMLA leave, they must be allowed to return to their job or an equivalent job that has the same pay, benefits, and other terms and conditions of employment. Employers must keep employees notified of their rights under the FMLA, including displaying the “Your Employee Rights Under the Family and Medical Leave Act” poster in a place where it can be easily seen by all employees. The Department of Labor most recently updated this poster in April 2023. The updated version can be found here. DOL Addresses FMLA for Remote Workers Ten years ago, when remote work wasn’t as common as it is today, whether an employer was covered by the FMLA was simply answered by a physical headcount at the workplace. In response to the recent rise of remote work, however, the DOL decided to issue the Bulletin to address how employers with remote employees should handle their obligations under the FMLA. The Bulletin clarified that for purposes of FMLA coverage, a remote employee is considered to work from whatever office they report to or from which their assignments are made. An employee’s personal residence is not considered a worksite. This means it is the assigned office or worksite, and not the employee’s home, that will count towards the 50-employee threshold for determining FMLA coverage. Let’s go back to our earlier example. Say you have 6 employees who telework from their homes in Cleveland, more than 75 miles away from your office headquarters in Sidney, Ohio. Those employees receive assignments from the manager who works at the Sidney office. The Sidney office has 45 employees. The 45 onsite employees, combined with the 6 remote employees, is sufficient to bring that employer into coverage under the FMLA. If you have questions about how the DOL Bulletin may affect your remote employees or if you wish to discuss your general obligations under the FMLA, contact your FGKS Law attorney. For more information about FGKS Law attorneys and practice areas, please visit www.fgks-law.com.Department of Labor Addresses How the FMLA Applies to Remote Workers
