FMLA - Basics for the Company in a Telecommuting World
As telecommuting, flex, remote work opportunities expand, a quick refresher on some common issues would be helpful, as it relates to some of the leave requirements that employees often request from their employers.
The Family Medical Leave Act (“FMLA”) provides that an “eligible” employee of “covered” company may request and receive upon to 12 weeks of unpaid leave from employment, and the company will hold the employee’s job open. Due to many questions that seem to arise regarding these basic questions, I wanted to quickly answer some basics, especially in light of the shift to telecommuting.
Covered Company
The easiest way to think of this is whether the company has 50 employees. Also, we’re just thinking about private, companies, not public agencies. Technically, there are a few parts to this analysis for separate, related companies, and the company has to be employing these workers for at least 20 weeks a year, but let’s assume that those parts are satisfied, under 29 CFR § 825.104. If you have multiple companies with less than 50 employees in each, we should take a careful look at whether this applies to you.
Eligible Employee
29 CFR § 825.110 defines that an employee must meet 3 tests to be “eligible” to request FMLA.
The employee must have been employed with the company for 12 months.
The employee must have worked at least 1,250 hours during the 12 months prior to the start of FMLA leave.
The employer is a covered employer, and employs 50 or more employees within a 75-mile radius of the employee's worksite.
The first two parts are easy enough to determine - just pull up time cards or payroll records.
The third piece is going to require that we all bust out an old protractor from Junior High Geometry and draw a 75 mile radius circle on a map, with the company’s worksite at the epicenter. (OK, before a bunch of lawyers get all crazy on me, the technical rule is to calculate the 75 miles as “surface miles” as explained under 29 CFR § 825.111(b), but memories of drawing circles with a protractor were too tempting not to conjure up.)
Returning to the eligibility, the “Worksite” for the eligible employee, is the corporate office where the employee physically works, or, in the case of a remote employee, “the office to which [the employee] report[s] and from which assignments are made.”
So, breaking this all down, the employee requesting FMLA does not need to be living within 75 “surface miles” of their worksite, but rather the covered company must have at least 50 employees living within 75 miles of the employee’s “worksite”.
Conclusion and Warning
This was really only a breakdown of a few parts of FMLA, and this is a federal rule that provides a minimum compliance no matter where the company is located. It is completely possible that your specific state will have other rules to follow that may be more strict than the federal ones.
I’ve seen lots of companies get in trouble for screwing this up. There are other rules, including the notice requirements, how long you have to respond, what information the employee must provide, and more.
A quick question is was better to get answered at the beginning than dealing with lawsuits or federal/state scrutiny for failure to follow the rules.