The Family and Medical Leave Act (FMLA) requires that employers with at least 50 employees provide their employees with up to 12 weeks of unpaid leave during a 12-month period for qualifying family and medical reasons. The law also forbids an employer from filling an employee’s position while he or she is on leave, and prohibits the employer from terminating or in any way retaliating against employees who take the leave. The FMLA’s requirements can cause particular difficulty for companies with remote sales individuals who each cover a large sales territory.
The law excludes certain individuals who are not eligible for FMLA leave, including any employee working at a worksite where the employer employs fewer than 50 employees if the total number of employees within 75 miles of that worksite is fewer than 50. The question then arises: What defines an employee’s worksite?
When employees report to a facility and perform their job duties from that facility, the answer is simple: An employee’s worksite is the location where the employee performs his or her job-related duties. However, the question becomes more complicated when the employee performs duties remotely. The regulations explain that, for remote employees, “the worksite is the site to which they are assigned as their home base, from which their work is assigned, or to which they report.” 29 CFR § 825.111(a)(2). The regulations also state, “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.” 29 CFR § 825.11(a)(2).
It is more and more common, however, for one remote employee to report to yet another remote employee. Thus, remote employees often report to and receive assignments from yet another remote workplace. In this instance, it may be more likely that the employee cannot, therefore, make the requisite showing to be eligible for leave when they work remotely and report to another employee who works remotely. While the situation is not uncommon, the case law in this area is sparse at this time.
On top of this, of course, many states also have leave laws that in some cases mimic, and in others do not, the structure of the FMLA. In general, the employer needs to comply with the stricter of the two laws, which means that similar employees may have different leave eligibilities based on the relevant worksite as determined for them. Each situation involving remote employees should be given careful attention to ensure compliance with the applicable law.