3640.04 / What options do employers have when determining whether to grant a remote employee’s request for FMLA leave?

To determine whether a remote worker is legally entitled to FLMA leave, the employer will have to conduct a case-by-case analysis to determine whether the employee’s worksite is located for FMLA purposes. The company must examine their physical worksite, reporting site and the site from which assignments come. If the employer does not have at least 50 employees within 75 miles of any of those locations, the employer would have a strong argument that the employee is not entitled to FMLA leave.

Other employers may wish to grant FMLA leave to employees who meet the hours-of-service and employment length requirements regardless of their remote location. While this approach can help employers avoid litigation, it can also provide employees with benefits to which they are not legally entitled (depending on the facts).

Employers may also be able to assign a reporting worksite and an assignment site to each remote employee when agreeing to continue a remote working arrangement. The employer could then examine the facts to determine whether they have at least 50 employees within 75 miles of those reporting/assigning worksites.