The date was February 5, 1993. Whitney Houston’s “I will always love you,” was # 1, Apple stock was $0.42 a share, and the concept of a “remote workforce” only made sense in reference to television factories. It was also the day that the Family and Medical Leave Act (FMLA) was enacted, requiring covered employers to provide employees with job-protected, unpaid leave for qualified medical and family reasons.
Given that working from home in 1993 was most certainly the exception and not the rule, the language in the FMLA did not take into account a world in which remote work was commonplace like it is today. So does remote work impact FMLA eligibility? It can if you aren’t careful.
The FMLA requires that certain private employers provide eligible employees with up to 12 weeks of unpaid leave from work to take care of their own serious health condition or a family member’s serious health condition.
An employer is required to provide FMLA to eligible employees if it employs 50 or more employees in 20 or more workweeks in the current or previous calendar year. An eligible employee is one who meets all of the following conditions:
The crux of the issue as it pertains to FMLA eligibility and remote workers revolves around this concept of a work site and the 50/75 rule (50 employees within a 75-mile radius). While many employers waive the 75-mile rule, especially if they have remote workers, some employers are more strict with the rule’s application, which comes with potential risks.
Denying FMLA eligibility for your remote employees because they aren’t technically working within 75 miles of an office can be a risky proposition. Some employers will try to claim they’re going by the letter of the law, but since the FMLA wasn’t written with today’s remote workforce in mind, the letter of the law can be quite blurry. To help your organization mitigate compliance risks, and to best support your people, let’s bring the issue into focus by outlining why organizations often waive the 50/75 rule:
If your company has 50+ employees total, it’s possible that your remote workers already satisfy the 50/75 requirement.
It can be a lot of work, and invite compliance risk, to enforce the 50/75 rule.
HR professionals can be personally liable for incorrect FMLA eligibility decisions.
The California Family Rights Act (CFRA) doesn’t have the same 50/75 requirement that FMLA does.
The original reason for considering a 75-mile radius doesn’t translate well to remote workforces.
It might just be the right thing to do.
Your organization might have reasons for attempting to strictly apply the 50/75 rule for your remote employees. So let’s take a look at a case in Texas where doing so led to an employee suing their employer over FMLA eligibility.
In Landgrave v. Fortec Medical Inc., a remote employee sued her former employer, Fortec, alleging that it failed to provide her leave under the FMLA after concluding that she was not eligible because the company did not have 50 employees within a 75-mile radius in Texas.
In this case, Landgrave argued that her worksite was the company headquarters in Ohio. Fortec argued that Landgrave’s worksite was in Texas, because that’s where Landgrave’s supervisor worked. The court denied Fortec’s motion for summary judgment, stating that the location of the worksite was an issue of fact for a jury to decide. Before that could happen, the parties settled confidentially out of court, but not before the employer had to pay for an expensive legal defense.
Would this situation have come about if the employer had been more lenient with its interpretation of the 50/75 rule for its remote worker? The bottom line is it’s up to the employer’s discretion on how to apply this rule, but the risks associated with being strict aren’t insignificant and need to be taken into consideration when making that decision.
Had Fortec been more lenient and not denied Landgrave FMLA eligibility over remote status, Landgrave would have been given access to job-protected leave, felt more supported by her employer, and there would have been no reason for legal recourse.
Tilt is leading the charge in all things leave of absence management through easy-to-use tech and human touch. Since 2017, our proprietary platform and Empathy Warriors have been helping customers make leave not suck by eliminating administrative burdens, keeping companies compliant, and providing a truly positive and supportive leave of absence experience for their people.
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