Jaburg Wilk


Telecommuters: Don’t Let Your Employers Fail To Honor Your FMLA Rights

Categories: Employment, Article

Many people do not know that there is a special rule for telecommuters in seeking Family Medical Leave Act rights. If you work from home, even if you are the only employee in your state, you are still entitled to FMLA coverage if you meet the other qualifications.

I recently saw a client who worked for a large company from her home. She needed to take time off for a surgery and recuperation but her company was telling her she was not covered by FMLA because the company did not have any other employees within 75 miles of her home. She pushed the issue with our help and convinced the entire company to change its policies across the nation. This is because of a Department of Labor regulation, 29 CFR section 825.111(a)(2).

Most employees know that to be covered under the FMLA they need to have worked for the company for at least 12 months and have worked at least 1250 hours in the last 12 months. In addition, “the employee has to work at a location where the employer has at least 50 employees within 75 miles.” See Fact Sheet 28 from the Department of Labor.

However, this rule about “50 employees within 75 miles” needs to be interpreted carefully when dealing with telecommuting employees who work from their home. The question to be determined is the location where the employee works – what is their worksite? Fortunately, this regulation specifies how to determine the worksite.

First, the regulation says that “An employee's personal residence is not a worksite”. It then defines worksite for telecommuting employees: “their worksite is the office to which they report and from which assignments are made.” In other words, a remote employee’s worksite is not their home but is probably the home office of their company.

For example, a company may only have 25 employees in the home office, but if it has at least 25 more employees working remotely who report to that office, then all of the employees of that company are entitled to FMLA benefits.

The FMLA also has special rules for employees who have no fixed worksite, such as construction workers. For them, “the worksite is the site to which they are assigned as their home base, from which their work is assigned, or to which they report”. The regulation even provides an example:

For example, if a construction company headquartered in New Jersey opened a construction site in Ohio, and set up a mobile trailer on the construction site as the company's on-site office, the construction site in Ohio would be the worksite for any employees hired locally who report to the mobile trailer/company office daily for work assignments, etc. If that construction company also sent personnel such as job superintendents, foremen, engineers, an office manager, etc., from New Jersey to the job site in Ohio, those workers sent from New Jersey continue to have the headquarters in New Jersey as their worksite. The workers who have New Jersey as their worksite would not be counted in determining eligibility of employees whose home base is the Ohio worksite, but would be counted in determining eligibility of employees whose home base is New Jersey.

In this day and age, especially with COVID-19, there can be many types of employment arrangements. For example, what if your boss telecommutes, too? While the regulation is silent, it seems likely that your worksite is wherever the boss reports or receives assignments, since the worksite can’t be the boss’ home.

So if your employer says you’re not covered under the FMLA, check your rights and consult with an experienced employment law attorney. Your employer’s position could be wrong.

About the Author: Kraig J. Marton is a partner and the chair of the employment law practice group at Jaburg Wilk. He has many years of representing both employees and employers in employment matters, in state and federal court.