Question

We have a remote employee going out on leave, and I am trying to figure out if our company is still covered by the Family Medical Leave Act (FMLA).  About half of our staff now work primarily from home.  We have only 33 employees in the office.  The remaining 32 are all remote.  Some live within 75 miles of the office, and others (including the employee planning the leave) are farther away.  Do I need to figure out how many are within 75 miles of the office to determine if the company is covered by FMLA?

Answer

Remote workers may be covered by the federal Family and Medical Leave Act (FMLA) even if they are not physically at a location with 50 or more employees.

To be eligible for FMLA leave, an employee 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 federal Department of Labor (DOL) earlier this year issued a bulletin indicating how employees are counted under the third requirement.  The employees are counted at the work location to which they report.  Therefore, your company is covered by the FMLA since everyone reports to this single location.

You are covered by the FMLA if you have 50 employees at or reporting into the location for 20 weeks or more in the current or previous year, even if your workforce is not always above the 50-employee threshold. Note that the employee’s worksite for the purpose of the FMLA may differ from the worksite in other contexts such as unemployment, taxes, and Massachusetts Paid Family and Medical Leave (PFML).  In some circumstances, the employee’s home will be considered the worksite.

FMLA leave still applies to leaves taken for an employee’s serious health condition or to care for a family member.  The federal FMLA has been eclipsed by the Massachusetts PFML since it became available in 2021.  When a leave qualifies under the two laws it should be designated as both; PFML and FMLA will run concurrently.

AIM members with questions about FMLA leave or any other human resources matter may call the AIM HR Helpline at (800) 470-6277.