Fully Remote Companies May Not Have FMLA Protection

The Family Medical Leave Act (FMLA) went into effect in 1993, so you just assume that as long as the business is big enough (50 people) you’re covered. But, remote work has called that into question.

Here’s what you need to know.

The Rules for FMLA

To be eligible for FMLA, you first need a condition that qualifies (or a new child, or a sick family member), and then must meet the following three conditions:

  1. The employee must have been employed with the company for 12 months.
  2. The employee must have worked at least 1,250 hours during the 12 months prior to the start of FMLA leave.
  3. The employer is a covered employer, and employs 50 or more employees within a 75-mile radius of the employee’s worksite. 

It’s that last one that puts employees into a bit of a pickle. If you work from home in Connecticut and your coworkers are scattered throughout the country, are you all ineligible for FMLA?

What Is a Worksite?

in 1993, the idea that vast swaths of people would be working from home never crossed the minds of congress. While some people worked remotely pre-pandemic, more people than ever work from home–and some businesses have gone fully remote. There is no office.

FMLA acknowledges that not everyone will be in the office and there are clear guidelines for someone who works from home–when there is an office. FMLA states clearly regarding remote workers,

An employee’s personal residence is not a worksite in the case of employees, such as salespersons, who travel a sales territory and who generally leave to work and return from work to their personal residence, or employees who work at home, as under the concept of flexiplace or telecommuting. Rather, their worksite is the office to which they report and from which assignments are made.

So, as long as you have an office–a worksite–of some sort–your business is subject to FMLA when you hit 50 employees.

When there is no office at all.

What happens when your company has no office? Everyone is remote? Jeff Nowak, an employment attorney who specializes in FMLA and is a Shareholder at Littler says he hasn’t seen any lawsuit that focuses on this issue.

But, he cautions that you shouldn’t just assume there is no FMLA if there is no office. While there have been no test cases, you don’t want to be the one that goes to court. He says,

“But what happens if the employee’s manager works remotely?  And the manager’s manager works remotely? And so on?  Surely, the law cannot be read in a way to render all remote employees ineligible for FMLA, so it’s critical for employers to avoid taking too risky a position in automatically denying FMLA leave to remote employees.”

So are fully remote employees in a fully remote company covered? We don’t know for sure, but as Nowak says, don’t automatically deny FMLA. You’ll never get in trouble for being generous.

Remember the purpose of the 75 mile rule.

Back in 1993, if you were out of the office, it was your immediate coworkers who had to pick up the slack. So it made sense that if there were 300 employees in California and only three in New Jersey, that having one of the NJ employees out was much more of a hardship. With remote work, the impact of one absent employee can be spread out among people all over the country–or globe.

Your best bet is to act as if FMLA applies once you hit 50 employees, even if you have no office. Besides, telling your employees they can’t have protected leave for medical conditions and new babies won’t endear you to them.

Is it possible you don’t have to? Absolutely. Will this hit the courts at some point? Guaranteed. Until then, and we get a clear answer, proceed with caution. Treat your employees the way you would like to be treated. It’s a benefit to everyone.

The opinions expressed here by Inc.com columnists are their own, not those of Inc.com.

Newsletter Signup

Subscribe to our weekly newsletter below and never miss the latest news.