Not surprisingly, simple solutions to complex issues are often elusive. Yet on rare occasions, the solution is in plain sight. Doubtful? For employers struggling with the issue of a remote employee’s eligibility for job-protected leave under the federal Family and Medical Leave Act (FMLA), there is a very simple answer. And, unlike the analysis we discussed in our commentary about wage and hour issues for remote employees, the answer does not depend on the location of the remote employee.

Most employers are familiar with the first two of the three employee eligibility requirements under the federal FMLA.  It is the third eligibility requirement that may throw employers of remote employees for a loop.  An employee is eligible for FMLA leave if the employee:

  1. Has been employed by the employer for at least 12 months, and
  2. Has been employed for at least 1,250 hours of service during the 12-month period immediately preceding the commencement of the leave; and
  3. Is employed at a worksite where 50 or more employees are employed by the employer within 75 miles of that worksite.

 The third eligibility requirement

Few employers were concerned with the third requirement when most employees worked at the employer’s physical location (worksite). However, as remote work becomes more of the rule than the exception, many employees are working at locations other than the employer’s physical worksite, often even in a different state. How is an employer to determine whether a remote employee is employed within 75 miles of a worksite where 50 or more employees are also employed?

A review of the U.S. Department of Labor (DOL) regulations reveals that the DOL has considered this very issue and defined the term “worksite” as it relates to remote employees. The regulations state, in relevant part:

An employee’s personal residence is not a worksite in the case of employees, such as salespersons, who travel a sales territory and who generally leave to work and return from work to their personal residence, or employees who work at home, as under the concept of flexi-place or telecommuting. Rather, their worksite is the office to which they report and from which assignments are made.

The regulations clearly state that a personal residence is not an employee’s worksite. Instead, for the remote employee, the worksite is the location to which the employee reports and from which assignments are made.

Therefore, to determine a remote employee’s eligibility for leave under the FMLA for the third requirement of the eligibility test, employers must determine:

  1. The worksite location to which an employee reports and from which their assignments are made; and
  2. Whether that worksite has at least 50 employees, including all remote workers assigned or reporting to that worksite.

Related considerations

Eligibility under federal FMLA may not be the end of the analysis regarding family and medical leave benefits. Employers must also consider the employee’s eligibility for benefits under applicable state family and medical leave laws. State laws often have different eligibility requirements from federal law as demonstrated by the new Maryland and Colorado family and medical leave laws described below.

Effective June 1, 2022, Maryland has a new state paid family and medical leave insurance program, the Time to Care Act (TTCA), with employees eligible for state family and medical leave insurance benefits in 2025. Maryland’s TTCA applies to a person that employs at least one individual in the state. Employees who have worked at least 680 hours over the 12-month period immediately preceding the date on which leave is to begin are covered employees. The TTCA does not include a requirement that workers be within a specified distance of the worksite to be eligible for benefits, although regulations have not been issued yet.

In contrast, Colorado voters approved a ballot initiative in 2020, the Paid Family and Medical Leave Insurance Act, a paid family and medical leave program (Colorado FAMLI) that will provide family and medical leave insurance benefits for certain employees beginning January 1, 2024. Colorado FAMLI applies to employers who employ at least one person for each working day during a specified period of time. Most employees located in Colorado are covered if they earn at least $2,500 in wages, subject to premiums, during the applicable base period. Coverage of remote workers under FAMLI depends on where the work is localized or wages are reported. Final regulations have not been issued on this topic yet in Colorado either.

A final thought

More and more businesses are making the decision to permit their employees to work remotely for any number of reasons. Business leaders need to stay on top of the new or different compliance obligations their decision may create. When it comes to family and medical leave (paid or unpaid), employers need to make sure they understand the rules for eligibility for their remote employees under federal or (sometimes conflicting) state law. In the case of family and medical leave, it is important for employers to understand the workflow of the business and to keep track of the correct “worksite” for all employees, including the remote ones.

Contact us

Our Labor and Employment team can help assess compliance obligations with respect to out-of-state or remote employees under federal and state employment laws and develop a comprehensive remote work policy. For assistance, contact Barbara Grandjean, Tracey O’Brien, or your Husch Blackwell attorney.