Just in time for the 30th anniversary commemorating the passage of the Family and Medical Leave Act (FMLA) on February 6, 2023, the Department of Labor (DOL) released guidance in a Field Assistance Bulletin (“DOL Bulletin”) on February 9, 2023 addressing, amongst other items, eligibility rules when employees telework under the FMLA. Read on for more information.
FMLA Background
The FMLA requires covered employers to provide eligible employees with up to 12 weeks of unpaid, job-protected leave for an eligible employee’s own serious health condition or to care for the eligible employee’s spouse, child, or parent with a serious health condition. FMLA leave is also available for eligible employees to take time off work for the birth, adoption, or foster care placement of a child and to bond with the child.
Eligible Employees: Employees are eligible for FMLA leave if they work for a covered employer for at least 12 months, have at least 1,250 hours of service for the employer during the 12 months before the leave, and work at a location where the employer has at least 50 employees within 75 miles.
Covered Employers: Covered employers under the FMLA are those who employ 50 or more employees in 20 or more workweeks in the current or preceding calendar year, including joint employers or successors in interest to another covered employer.
Recent DOL Bulletin Guidance
The DOL Bulletin confirms that employees who telework are eligible for FMLA leave on the same basis as employees who report to any other worksite to perform their job. For FMLA eligibility purposes, the employee’s personal residence is not a worksite[1]. When an employee works from home or otherwise teleworks, their worksite for FMLA eligibility purposes is the office to which they report or where their assignments are made.
If 50 employees are employed within 75 miles from the employer’s worksite (the location where the employee reports or where their assignments are made), the employee meets that FMLA eligibility requirement. The count of employees within 75 miles of a worksite includes all employees whose worksite is within that area, including employees who telework and report to or receive assignments from that worksite.
The DOL Bulletin provides two examples of this rule:
- Example 1: A store employee and their supervisor both work from home following a weather emergency on a temporary basis. For FMLA eligibility purposes, the store remains the worksite for the store employee and supervisor.
- Example 2: Several employees telework from their homes for a company headquartered in a city more than 75 miles away. These remote employees are assigned projects from their manager who works at the company headquarters. For FMLA eligibility purposes, the worksite for these remote employees is the company headquarters, where they are assigned projects from their manager.
The Bulletin also confirms that all hours worked by teleworking employees are counted when determining whether that employee satisfies the 1,250 hours of service requirement under the FMLA, regardless of whether the employee teleworks from home consistently or in combination with working at another or various worksites.
Next Step for Employers
As telework continues to be a mainstay for many organizations, employers covered under FMLA are encouraged to review this recent DOL Bulletin guidance closely for their employees who telework. This DOL Bulletin provides valuable insight on the DOL’s interpretation of the interaction between telework and the FMLA.
The DOL Bulletin also provides guidance on (1) tracking hours worked by employees who telework under the Fair Labor Standards Act (FLSA) and (2) FLSA rules requiring employers to provide reasonable break time and a private space to express breast milk, both of which should be closely reviewed by employers in conjunction with their employment counsel.
Risk Strategies is committed to keeping employers informed and up-to-date. Reach out to your Risk Strategies representative with any questions or contact us directly at benefits@risk-strategies.com.
[1] See 29 C.F.R. § 825.111(a)(2)
