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► Dealing With Remote Employees And FMLA Leave

With increasing numbers of employees working remotely, employers can sometimes lose sight of the fact that remote workers may be eligible for leave under the Family and Medical Leave Act (FMLA). A bulletin issued in February by the U.S. Department of Labor’s (DOL) Wage and Hour Division reminds us of that possibility.

The Facts

The FMLA allows employees to take job-protected leave for certain health or family circumstances. Employees who telework or work away from an employer’s facility are entitled to FMLA leave on the same basis as employees who work on an employer’s premises, so long as they meet the FMLA’s eligibility requirements. To be eligible for FMLA leave, an employee (working on-site or remotely) must:

  • Have worked for the employer for at least 12 months;
     
  • Have worked at least 1,250 hours during the 12-month period immediately before the leave; and
     
  • Work at a location where the employer has at least 50 employees within 75 miles.
     

The first two requirements are easy to apply to remote employees, but how does the “50 employees within 75 miles” requirement work?

For employees working remotely, the DOL’s Wage and Hour Division says when counting the number of employees within 75 miles, their work location is “the office to which they report or from which their assignments are made.” Furthermore, you should include in your employee count all other remote employees who report or get assignments from the same location.

Bottom Line

If I worked remotely for Cain’s Ballroom from Tahlequah (home of the Turnpike Troubadours) and reported to Cain’s Tulsa office, I should count all the Tulsa office employees, as well as any other remote employees—regardless of their remote location—who report to Cain’s Tulsa office to determine whether I meet the “50 employees within 75 miles” FMLA eligibility requirement. The same would hold true if I were working for Cain’s Ballroom from Austin, Denver, or New York, so long as I was reporting to the Tulsa office.
 

By Charlie Plumb. Mr. Plumb is an attorney in the Tulsa, Oklahoma, office of McAfee & Taft where he represents management in all phases of employment law and labor relations. Much of his practice is dedicated to counseling employers on compliance with a broad range of state and federal employment laws and regulations and educating management on best practices for avoiding disputes arising from the employer/employee relationship.

[6/2023]

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