EB5_DETAILS

Are Remote Workers Eligible for FMLA?

09/25/2018 Written by: Megan DiMartino

With the ever-growing population of telecommuting employees comes the question if they’re eligible for FMLA (Family and Medical Leave Act). Most believe that telecommuters can’t qualify for FMLA because they are usually not within proximity of 49 other company employees within a 75-mile radius of a company worksite. But Section 825.111(a)(2) of the FMLA regulations clears up how to determine whether 50 employees are employed within a 75-mile radius of a worksite:

  • An employee’s personal residence is not a worksite in the case of employees, such as salespersons, who travel a sales territory and who generally leave to work and return from work to their personal residence, or employees who work at home, as under the concept of flexiplace or telecommuting. Rather, their worksite is the office to which they report and from which assignments are made.

For example, a company based out of Harrisburg, PA has 49 employees and also has an at-home employee who works from Chicago, IL. The at-home employee still gets their assignments from the main headquarters in Harrisburg,so under FMLA, their worksite is Harrisburg and qualifies them for FMLA.
There are also special regulations for employees who have no fixed worksite, such as construction workers. In that situation, the worksite is the site to which the employee is assigned as their home base, or from which their work is assigned, or to which they report. FMLA has provided an example for such situation:

  • [I]f a construction company headquartered in New Jersey opened a construction site in Ohio, and set up a mobile trailer on the construction site as the company’s on-site office, the construction site in Ohio would be the worksite for any employees hired locally who report to the mobile trailer/company office daily for work assignments, etc. If that construction company also sent personnel such as job superintendents, foreman, engineers, an office manager, etc., from New Jersey to the job site in Ohio, those workers sent from New Jersey continue to have the headquarters in New Jersey as their worksite. The workers who have New Jersey as their worksite would not be counted in determining eligibility of employees whose home base is the Ohio worksite, but would be counted in determining eligibility of employees whose home base is New Jersey.

There are many intricacies to FMLA and these are just a couple common examples. If you have any other questions or concerns, please feel free to contact your Account Manager or Account Executive at AP Benefit Advisors for further assistance.

Source: Jackson Lewis | The Devil Is in the Detail – FMLA Eligibility and Remote Workers

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