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).
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.
Planning Point: Note that the Sixth Circuit2 has ruled that employers may be required to grant FMLA leave when an employee must care for an adult sibling. The issue to consider is whether an "in loco parentis" relationship exists between the two parties. Factors listed by the Sixth Circuit as relevant to the determination include whether the person (1) is in close physical proximity to the adult, (2) assumes responsibility for supporting the adult, (3) exercises control over the adult or has rights over them and (4) shares a close emotional or familial bond (similar to that of an adult child). While the case is limited to the Sixth Circuit, it makes clear that employers should carefully consider the facts before denying a request for FMLA leave.