Q&A WITH BRANDON D. KEMP
Q: What’s the Family and Medical Leave Act and whom does it cover?
A: Most employers are familiar with the FMLA, which provides up to 12 weeks of unpaid leave to employees for their own serious medical condition or a close family member’s serious health condition. Private sector employers who have employed at least 50 employees for at least 20 weeks in the preceding year are covered by the FMLA. Private sector employees who have worked for a covered employer for 12 months and for at least 1,250 hours in the 12 months preceding leave are eligible for FMLA leave if they work at a worksite at which at least 50 or more people are employed within a 75-mile radius.
Q: Why does the FMLA cover only employees who work at a location at which at least 50 people are employed within a 75-mile radius?
A: When Congress passed the FMLA, Congress included the “50/75 rule” to address the concerns of small employers or employers with far-flung operations about the difficulties covering for an employee on FMLA leave. Congress recognized that in certain circumstances, asking these employers to accommodate FMLA leave wouldn’t be reasonable. The Department of Labor has reflected Congress’ concerns by making clear in the FMLA regulations that 75 miles means 75 surface miles over public roadways or waterways.
Q: How does this rule apply to employees who work from home?
A: Whether to cut costs or accommodate the unique circumstances of their employees, employers continue to shift many positions from in office to work from home. Some covered employers mistakenly assume that when an employee works from home at a location more than 75 miles from the covered employer’s other operations, that employee no longer is eligible for FMLA leave. Make no mistake, though: Those employees still may qualify. The Department of Labor’s regulations are clear that a home office is not a work site. Instead, the remote employee’s work site is the location to which that employee reports and from which assignments are made. If more than 50 employees either work at or report to that location, the remote employee still may qualify for FMLA leave.
Q: How does this rule apply to mobile employees? A: Oklahoma City is home to many industries that employ a mobile workforce, such as oil and gas, construction and trucking. Similar to remote workers, the FMLA usually deems the work site to which an employee is assigned as his or her home base, from which his or her work is assigned, or to which he or she reports to be a mobile employee’s work site. If an employee temporarily is working a job more than 75 miles from a covered employer’s base of operations, in certain circumstances, he or she still may qualify for FMLA leave.
Q: What should employers with a remote or mobile workforce do to ensure FMLA compliance?
A: Covered employers with a remote or mobile workforce should maintain personnel records that memorialize not only the actual physical location where an employee works, but also the work site from which an employee receives instructions and to which the employee reports. Covered employers also should be sure that their supervisory staffs understand that state and federal employment laws typically cover remote and mobile employees to the same extent as office employees. If an employer determines that the FMLA applies to it by counting employees who work remotely, then the employer needs to consult with a human resources or legal professional to determine how to implement the FMLA in the workplace and how to provide notice to employees of its conditions and provisions.