Key to remember: Employee private residences are not worksites for purposes of the FMLA eligibility of working at a site with at least 50 company employees.

Applies to: Employers subject to the FMLA — private employers with 50 or more employees in the U.S. and all public employers.

Impact to customers: With so many employees working from home, employers need to assess FMLA eligibility correctly.

Possible impact to JJK products/services: This news item will be on the FMLA Manager.

Like many company employees, Pam had been working from home since mid-March, when she became subject to a stay-at-home order. Since then, the arrangement had allowed her to perform her job effectively. Now, however, she asked Renee in the HR department if she could have some time off to care for her daughter, who needed a planned medical procedure. The company didn’t have many FMLA-related cases to deal with, and this was the first since employees began working from home. Renee knew the general employee eligibility criteria for FMLA leave, but she wasn’t quite sure whether Pam would meet the criterion of working at a location with at least 50 employees; her home was about 100 miles away. Renee decided to investigate further.

According to some statistics, the percentage of employees working from home climbed from 7 percent before the pandemic to over 60 percent since the pandemic hit. Since most aspects of life continue, employees who work from home may find themselves in situations involving leave under the federal Family and Medical Leave Act (FMLA). Just because they work from home does not mean that these employees are not eligible to take such leave.

Employees are eligible to take FMLA leave for a qualifying reason if they meet the following criteria:

• They have been employed by your company for at least 12 months, 
• They have worked at least 1,250 hours in the 12 months before leave is to begin, and 
• They work at a site with at least 50 company employees within 75 miles. 

That last criterion can be a bit tricky for remote workers. That’s because an employee’s private residence is not considered a worksite for purposes of employee eligibility for FMLA leave.

Instead, for employees who work from home, their worksite is the office to which they report and from which assignments are made.

Therefore, assuming Pam is receiving her assignments from the worksite to which she used to report, that worksite would be considered her worksite. If at least 50 company employees within 75 miles work at that site, Pam would meet the “50 employees within 75 miles” eligibility criterion. This would be true even if Pam’s residence was 200 or 300 miles away from the office where her assignments originated.

Consequently, if Pam had worked for the company for at least 12 months and had performed at least 1,250 hours of work in the 12 months before leave was to begin, she would be eligible to take FMLA leave for a qualifying reason.