FMLA Eligibility and Remote Workers
By David S. Mohl
An employee’s personal residence is not a worksite in the case of employees, such as salespersons, who travel a sales territory and who generally leave to work and return from work to their personal residence, or employees who work at home, as under the concept of flexiplace or telecommuting. Rather, their worksite is the office to which they report and from which assignments are made.
As such, a remote employee’s worksite can be a location where they do not physically work.
For example, ABC Company employs 49 workers who are based and work out of its Atlanta, Georgia headquarters. ABC also employs Sally, who works from home in Orlando, Florida. Sally gets her assignments from her manager who works at the company’s Atlanta headquarters. Under the FMLA, Sally’s worksite is Atlanta.
This is one example of the many intricacies of the FMLA regulations. The FMLA also has special rules for employees who have no fixed worksite, such as construction workers. In those situations, the worksite is the site to which the employee is assigned as their home base, from which their work is assigned, or to which they report. The FMLA regulations provide the following example to illustrate this nuance:
[I]f a construction company headquartered in New Jersey opened a construction site in Ohio, and set up a mobile trailer on the construction site as the company’s on-site office, the construction site in Ohio would be the worksite for any employees hired locally who report to the mobile trailer/company office daily for work assignments, etc. If that construction company also sent personnel such as job superintendents, foremen, engineers, an office manager, etc., from New Jersey to the job site in Ohio, those workers sent from New Jersey continue to have the headquarters in New Jersey as their worksite. The workers who have New Jersey as their worksite would not be counted in determining eligibility of employees whose home base is the Ohio worksite, but would be counted in determining eligibility of employees whose home base is New Jersey.
29 C.F.R. § 825.111(a)(2)
The examples above are two of the many intricacies of the FMLA. Employers need to ensure that their leave administration process is complaint with both the FMLA and the large body of state leave laws.
***This article originally appeared on the Jackson Lewis’ Disability, Leave & Health Management blog and was reposted on the DMEC website with their permission.***