The Department of Labor recently issued clarifying guidance on how to apply the eligibility rules under the Family and Medical Leave Act (FMLA) when employees telework or work away from an employer’s facility.
Existing Law
General Benefits: Employers subject to the FMLA must provide up to 12 weeks of unpaid leave during a 12-month period to eligible employees for certain specified events. Those events include personal illness, caring for a seriously ill family member, childbirth, adoption or placement of a child, military caregiver leave, and military exigency leave. The FMLA requires job protection during the leave.
Employee Eligibility: Generally, employees are eligible for FMLA leave if they meet the following three criteria:
- Have worked for their employer for at least 12 months,
- Have worked 1,250 hours over the past 12 months; and
- Work at a location where the employer employs 50 or more employees within a 75-mile radius.
Benefits Continuation: Employers must maintain any group health plan coverage and other welfare benefit plan coverage for employees on FMLA-protected leave under the same conditions that would apply if the employee had not taken leave. This typically means that employers must continue benefits. However, they may require that employees continue to pay their required contributions.
Job Restoration: Upon conclusion of the FMLA leave period, the employer is required to restore the employee to the same or an equivalent position. This includes equivalent employment benefits, pay, and other terms and conditions of employment.
Counting Methodology Applies to Teleworkers
The new guidance outlines that all hours worked are counted for purposes of determining an employee’s FMLA eligibility, including hours when an employee teleworks from home or works at other locations.
When an employee works from home or other locations, the employee’s worksite, for FMLA eligibility purposes, is the office to which he reports or from which his assignments are made. This is particularly important in applying the 75-mile rule.
The DOL specifically explained that if 50 employees are employed within 75 miles of the employer’s worksite (the location to which the employee reports or from which 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 particular worksite.
Resources
This guidance was provided in DOL Field Assistance Bulletin No. 2023-1, issued in February 2023. It can be accessed here.
