Our corporate office in California has 49 employees, while we also have remote employees in other states — one in Nevada, two in New Mexico, and one in Arizona. The Arizona employee is requesting Family and Medical Leave Act (FMLA) leave. Can the Arizona employee be eligible for FMLA under the worksite requirement of 50 or more employees in a 75-mile radius?
Under the federal Family and Medical Leave Act (FMLA), covered employers are required to provide unpaid job-protected leaves of absence for qualifying reasons such as an employee’s own serious health condition, to care for a qualified family member’s serious health condition, baby bonding, pregnancy-related disability, or other qualified reasons.
For employees in California, the employer also will need to complete an analysis of whether California Family Rights Act (CFRA) leave or any other leave is applicable.
For employees outside of California, employers also will need to analyze if there are any applicable state/local leave of absence laws.
FMLA Eligibility
For an employee to be eligible for FMLA, the employee must meet the following key requirements:
- Employed at a worksite with 50 or more employees within a 75-mile radius; and
- Have worked for the employer for 12 months and 1,250 hours in the 12 months prior to the need for leave.
In this example, the Arizona employee satisfies the second requirement above, and we now need to determine the worksite.
Defining a Worksite
In most cases, the laws are applicable based upon where the employee is performing the work. For example, an Arizona employee who works from home is considered to be working from their Arizona home. However, FMLA eligibility revolves around the employee’s worksite and how it is defined for the FMLA.
To determine FMLA eligibility, the employee’s personal residence is not a worksite. (Title 29, Code of Federal Regulations, Section 825.111(a)(2)).
When an employee works remotely, their worksite is the office to which they report or from which their assignments are made. In other words, this would typically be where the employee’s manager is located. Here, the employee’s manager, and where the employee reports to and receives assignments from is the corporate office in California. Therefore, for FMLA purposes, the Arizona employee’s worksite is considered to be the California corporate office.
Employee Count for FMLA Eligibility
To determine whether the 50-employee threshold within a 75-mile radius is met, count all employees whose worksite is considered the California corporate office or located within a 75-mile radius of the worksite, including remote workers who report to this office.
The one employee in Nevada, and two employees in New Mexico also report to and receive assignments from the California corporate office, so their worksite also would be the California corporate office.
The count would be as follows:
- 49 employees (corporate office in California);
- 1 employee in Nevada (counted in corporate office in California);
- 2 employees in New Mexico (counted in corporate office in California);
- 1 employee in Arizona (counted in corporate office in California)
The total of 53 employees meets the requirement of 50 or more employees employed at a worksite within a 75-mile radius. Therefore, the Arizona employee requesting the leave of absence is eligible for FMLA, even though the employee is physically located in Arizona.
Based on the worksite definition and employee count, the Arizona employee requesting FMLA is eligible for FMLA. (U.S. Department of Labor, Wage and Hour Division, Field Assistance Bulletin 2023-1, Telework Under the Fair Labor Standards Act and Family and Medical Leave Act, February 9, 2023.)
Column based on questions asked by callers on the Labor Law Helpline, a service to California Chamber of Commerce preferred members and above. For expert explanations of labor laws and Cal/OSHA regulations, not legal counsel for specific situations, call (800) 348-2262 or submit your question at www.hrcalifornia.com.
