Remote Workers Can Qualify for FMLA—Their Home Is Not the Worksite

A US employee who works remotely may qualify for federal Family and Medical Leave Act protection. The home address does not decide eligibility: the employee must work for a covered employer, meet the service requirements and have an assigned worksite where the employer has at least 50 employees at that site or within 75 miles. The Department of Labor’s FMLA fact sheet summarizes these conditions and the job and group-health-plan protections available for qualifying leave.

For a teleworker, the FMLA worksite is generally the office to which the employee reports or from which assignments are made—not the employee’s residence. The Department’s telework guidance confirms that rule and states that teleworkers who report to or receive assignments from the same office are included when the employer counts employees associated with that worksite.

Run the four-part eligibility test

Federal eligibility requires a “yes” at every step below. Whether the requested leave is for a qualifying family, medical or military-related reason is a separate question.

1. Is the employer covered? A private-sector employer is generally covered if it employed at least 50 employees in 20 or more workweeks in the current or preceding calendar year. Public agencies and public or private elementary and secondary schools are covered regardless of their overall headcount.
2. Will the employee have 12 months of service? The months generally need not be consecutive. Service before a break of seven years or more normally does not have to be counted, subject to exceptions including certain military service and a written agreement to rehire the employee.
3. Will the employee have 1,250 hours of service? Count the 12 months immediately before leave begins. For most employees, the total consists of hours actually worked rather than paid vacation, sick leave or other time off; work performed remotely counts like work performed on company premises.
4. Does the assigned worksite pass the employee-count test? The employer must employ at least 50 employees at that worksite or within 75 miles of it.

The 12-month and 1,250-hour conditions are determined when leave is due to begin. The worksite count is determined when the employee gives notice of the need for leave. If the employer has not kept an accurate record of hours worked, it bears the burden of showing that the employee did not meet the hours requirement.

Identify the office that directs the remote job

Look first at the offer letter, remote-work agreement, HR profile and organizational records for an assigned office or reporting location. Then establish where the employee actually reports and which office issues the assignments. A headquarters address is not automatically the worksite merely because it is the employer’s principal corporate address.

Consider a hypothetical employee who lives in rural Vermont but reports to and receives projects from a Boston office. Boston can be the FMLA worksite even if the employee never commutes there and lives more than 75 miles away. The relevant count concerns the Boston worksite and other employer worksites within the prescribed distance—not coworkers who happen to live near the employee’s Vermont home.

If reporting and assignment functions appear to come from different offices, ask the employer to identify the location it used and the facts supporting that choice. Labels such as “remote,” “home-based” or “national team” do not replace the worksite analysis.

Apply the 75-mile count to that worksite

The 75 miles are not measured from the employee’s home or as a straight-line radius. Under 29 CFR 825.111, the employer measures surface miles along public streets, roads, highways and waterways using the shortest route between worksites. If surface transportation is unavailable, the regulation uses the most frequently used mode of transportation.

The count is based on employees maintained on the employer’s payroll whose worksites fall within the measured area, not the number occupying desks on a particular day. A teleworker assigned to the directing office can count at that worksite even while working elsewhere. Conversely, living near an office does not make that office the worker’s worksite if the employee reports to or receives assignments from a different location.

The result can therefore seem counterintuitive. A remote employee who lives hundreds of miles from every colleague may pass because at least 50 employees have worksites at or near the directing office. Someone living in a large city may fail if the assigned office has fewer than 50 employer employees within the required surface distance.

Ask HR for a documented determination

An employee does not need access to the employer’s payroll data to request leave. Provide enough information for the employer to recognize that the absence may be for an FMLA-qualifying reason, along with the anticipated timing and duration. The employee need not mention “FMLA” when first requesting leave, but merely saying that someone is “sick” may not supply enough information.

For a focused request, assemble:

• the anticipated leave start date and, if known, its expected duration or intermittent schedule;
• the hire date and any earlier periods of employment with the same employer;
• available time records, pay statements or schedules for the preceding 12 months;
• the offer letter, remote-work agreement or HR record identifying an assigned office;
• the manager’s location and records showing where assignments originate;
• a request for the worksite address used and confirmation that the employer counted payroll employees at worksites within 75 surface miles as of the applicable notice date.

Once an employee requests leave or the employer learns that leave may be FMLA-qualifying, the employer generally has five business days to provide an eligibility notice, absent extenuating circumstances. If the employee is ineligible, the notice must give at least one reason. The Department of Labor’s notice requirements distinguish this eligibility notice from the later written designation decision about whether the particular absence qualifies as FMLA leave.

If the federal test is not met

Failing one condition means the absence is not protected by federal FMLA on that eligibility determination. It does not establish that no other protection applies, and eligibility may change as the employee reaches 12 months of service, accumulates sufficient hours or makes a later request when the worksite count is different.

State or local leave laws, disability-accommodation requirements, collective bargaining agreements and employer policies may create separate rights. If the disputed condition is the 50-employee test, the useful record is the employer’s identified worksite and employee count—not a calculation centered on the employee’s home.

Also read:

• Does FMLA Cover Remote Employees? How the Worksite and 75-Mile Rules Apply
• Home Office Tax Deduction for US Freelancers: Eligibility, Simplified Method and Records
• The Benefit of Returning to the Office After Remote Working