3640.03 / Are remote workers eligible for leave under the Family and Medical Leave Act (FMLA)?

Editor’s Note: The DOL has released a bulletin clarifying its position on employer obligations when determining whether a remote employee is eligible for FMLA leave. Employers must generally provide FMLA leave if they employ at least 50 employees within a 75-mile radius. When employees work from home, the worksite for FMLA eligibility purposes is the office to which they report or from which their assignments are generated. So, if at least 50 employees (including remote workers) are employed within 75 miles of the office to which the employee reports or from which assignments are generated, the remote employee is eligible for FMLA leave (even if no other employees are employed within 75 miles of the employee’s remote office).¹

The Family Medical Leave Act (FMLA) is a federal law that gives covered employees the right to 12 weeks of unpaid leave each year for any covered reason. While it may seem that employees who are not required to report to a physical location would be less likely to need time off to handle family and medical issues, the reality is that many are equally unable to work while a covered reason is ongoing. Employers with remote workers should be aware that they may be required to grant an employee’s request for unpaid time off even if the employee does not report to a physical worksite.

Covered reasons under the FMLA include:

For the birth and care of the newborn child of an employee,

For placement with the employee of a child for adoption or foster care,

To care for an immediate family member (spouse, child, or parent) with a serious health condition, or

For medical leave if the employee is unable to work because of a serious health condition.

Not all employees are eligible for unpaid FLMA leave and not all employers are subject to the law. Employees are eligible for FMLA leave if they:

Have worked for their employer at least 12 months,

Have worked at least 1,250 hours over the 12 months preceding the request for FMLA leave, and

Work at a location where the company employs 50 or more employees within a 75-miles radius.²

This law may create unanticipated complications for employers who permit employees to work on a remote basis. In some cases, remote workers report to an office that is in their same geographic location. However, it is becoming more common for workers to report to managers and supervisors who are also working remotely from different locations.

When a remote employee requests FMLA leave, questions involving whether the employee is entitled to the FMLA leave often arise. The issue in these cases is whether the employer has at least 50 employees within a 75-mile radius of the remote employee’s workplace.

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Planning Point: Employers who continue to permit remote work should be aware that existing and evolving state and local paid leave laws may apply. For example, Illinois has enacted a new paid bereavement act that became effective January 1, 2023. Under the law, the same requirements that apply in determining FMLA eligibility apply. An employee is eligible to take leave if the employee has worked for a covered employer for at least 1,250 hours within the previous 12 months, and also works at a location where the employer has 50 or more employees within a 75-mile radius.³

The Healthy Delaware Families Act provides up to 12 weeks of paid family and medical leave beginning in 2026 (employers will be required to begin implementing payroll deductions as of January 1, 2025). The law is similar to the federal FMLA, but applies to smaller employers, so that any employer with 10 or more employees who report to a Delaware worksite will be required to comply. It remains to be seen whether the law will apply to employers with ten or more employees who work remotely from Delaware.⁴

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A Texas court⁵ recently refused to grant a motion to dismiss a case where a company denied an employee’s request for FMLA leave. The company claimed they did not have 50 employees within a 75-mile radius in Texas. The employer’s headquarters was in Ohio, yet the employee was working remotely from Texas (the employee’s supervisor was also working remotely from Texas). The employee claimed that her “worksite” for FMLA purposes was Ohio, where the company was headquartered.

To have won summary judgement, the court found the company must establish that Ohio was not:

The employee’s “home base”,

The site that assigns the employee’s work, or

The site to which the employee reports

The court found that the term “worksite” had to be a location where the employee was physically present and that it referred not to the physical base of the employer’s operations, but to the physical base of the employee. The employee in this case was never physically present in Ohio, so she could not prove Ohio was her home base. However, the court found an issue of fact with respect to where the employee’s assignments were created and originated. The court found that this location is the site from which the employee’s day-to-day instructions were provided and that there was an issue of fact as to whether the assignments originated at the Ohio headquarters.

The Texas case settled privately before the court provided a final resolution of the issues. The case does, however, point to the fact-intensive nature of the inquiry as to whether any given remote employee may be eligible for FMLA leave. Employers should be aware that is possible that they may be required to provide FMLA leave even if they do not have 50 employees within a 75-mile radius of the remote employee’s physical location. That may be the case if the employee can establish that assignments were created or originated from the employer’s central location or if the employee sends assignments to a central location where they are evaluated (i.e., if the employee’s reporting worksite is where the employer has at least 50 employees).