One of the more enduring effects of COVID has been the dispersion of employees to jurisdictions that may be far outside the employer’s anticipated commuting distance. Remote work enables organizations to retain employees who relocated for various personal reasons, and increasingly I encounter businesses of all sizes that are intentionally drawing from a national (or even international) recruiting pool to attract the best talent. The challenge in all this is that our legal system is not structured to offer employers much by way of consistency in obligations across jurisdictions.
Employers particularly face an incongruity when determining what leave laws apply to their remote workers. In general, employers should presume that remote workers will be entitled to the benefit of whatever statutory leave laws exist in the state in which the worker is working remotely, which is typically the worker’s state of residence. Remote workers may, however, additionally be entitled to leave benefits that are mandated by the law of the state and/or locality in which the employer is located, including possibly the organization’s U.S. headquarters or the office location to which the employee is most directly connected for work assignments and supervision.
New DOL Guidance Addresses FMLA Leave for Remote Workers
New guidance issued by the U.S. Department of Labor (DOL) similarly states that a remote worker’s affiliation to an office location should be considered for purposes of determining the employee’s eligibility for leave under the federal Family Medical Leave Act (FMLA). The FMLA only applies to eligible employees if there are 50 or more employees working within 75 miles of the requesting employee’s worksite, a criterion that often is not met by remote workers. The new DOL guidance directs, however, that for FMLA eligibility purposes, the employee’s personal residence is not a worksite. Rather, the worksite for FMLA eligibility purposes is the office to which the employee reports (meaning the physical location to which the employee would go to perform work, were the employee not working remotely) or from which the employee’s assignments are made (meaning, for example, the location in which the employee’s manager works).
From a pure geography perspective, the DOL guidance renders the 50 employee/75 mile radius threshold meaningless. Employers that are evaluating an employee’s FMLA eligibility cannot simply rely on a headcount report of employees physically located within a particular geographic area. Rather, the employer needs to map the requesting employee to the appropriate worksite and identify all other employees who map to that same worksite or other worksites within a 75-mile radius.
The DOL provides an example of a data processor, who is one of many individuals working from different cities and states, all reporting to a single manager at headquarters. If there are more than 50 total employees working within 75 miles of the company’s headquarters, that data processor will be covered by the FMLA even if the data processor is not physically located within 75 miles of the company’s headquarters.
Plan in Advance
Employers that exceed the 50-employee threshold on a national level should, therefore, review the geographic breakdown of their workforce and align all remote workers to a physical worksite. Conducting this analysis in advance of a leave request, and notifying employees of the location to which they are officially aligned, provides clarity and greater ease of administration at the time a leave request is made.
By Tracey I. Levy