Guidance On The Application Of FMLA To Remote Workers
Apr 28, 2023 | Written by: | Share
The Wage and Hour Division (WHD) of the U.S. Department of Labor recently issued guidance to address questions that have arisen regarding the application of the federal Family and Medical Leave Act (FMLA) as it pertains to working remotely.
As a reminder, FMLA provides certain employees with up to 12 weeks of unpaid, job-protected leave per year. It also requires that their group health benefits be maintained during the leave. FMLA applies to all public agencies, all public and private elementary and secondary schools, and companies with fifty or more employees who work within a seventy-five-mile radius. These employers must provide an eligible employee with up to 12 weeks of unpaid leave each year. For an employee to be eligible under FMLA, the employee must have worked for the employer for at least one year (consecutive or non-consecutive) and must have worked at least 1,250 hours within the prior 12 months.
Due to an increasing number of employees working remotely, concerns have been raised about how the FMLA would apply to those workers. The WHD’s guidance has suggested that the FMLA’s protections apply to remote workers in the same manner in which they are available to on-site employees. It also offers some clarifications on how eligibility criteria relating to an employee’s “worksite” apply to remote workers.
The WHD’s guidance letter, issued on February 9, 2023, addresses the FMLA requirement that the employer has at least fifty employees employed within a seventy-five-mile radius. Per the WHD, a remote worker’s personal residence does not count as his or her “worksite” for FMLA purposes. Rather, when an employee works from home, the employee’s worksite for FMLA purposes is “the office to which they report or from which their assignments are made.” Accordingly, if at least fifty employees are employed within seventy-five miles from the location to which the employees report, or from the location in which they are provided assignments, that satisfies the FMLA’s seventy-five-mile radius requirement.
Based on this recent guidance, employees can have the flexibility of working from home or away from the actual premises/building managed or controlled by the employer and still remain covered by the protections of the FMLA, regardless of how far away from the office they reside.
If you are an employer or employee and have any questions concerning compliance with FMLA protected job leave or any other facet of same, please contact one of our employment law attorneys.
On a related note, please see my prior blog on “Mental Health Protected Job Leave,” where I discussed how an employee can take leave from work under the FMLA for his/her own serious health condition, or to care for a spouse, child, or parent who has a serious health condition.
Sharon M. Flynn, Esq. is a partner with Gebhardt & Kiefer, PC, and practices primarily in the areas of general litigation, employment law, and insurance defense.
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Any statements made herein are solely for informational purposes only and should not be relied upon or construed as legal advice.