The pandemic saw more employees working from home, and even now in 2023, there are still a large number of workers across the nation who continue to work remotely. Recently, the Department of Labor (DOL) issued guidance regarding how to apply Family and Medical Leave Act (FMLA) eligibility rules for employees working from home given the continued trend in remote work and telecommuting.
Remote Workers Eligibility for FMLA Leave
Eligibility for FMLA requires employment at a worksite with 50 of more employees, where workers are located within 75 miles of the worksite. Because a remote or teleworker’s personal residence is not considered a worksite, their location is identified as the office they report to or where assignments are derived from for the purposes of determining FMLA eligibility. Therefore, employers with 50 employees – reporting to/deriving assignments from the employer’s worksite, or employed within 75 miles of a worksite – are likely to meet the FMLA eligibility requirements. For more information regarding eligibility under FMLA as it applies to remote workers, see the recent Department of Labor (DOL) Wage and Hour Division’s Field Assistance Bulletin (FAB No. 2023-1).
Employee Rights Under FMLA at a Glance
The Family and Medical Leave Act (FMLA) allows eligible employees who work for a covered employer to take 12 weeks of unpaid, job-protected leave in a 12 month period:
- For the birth of a child or placement of a child for adoption or foster care;
- To bond with a child (leave must be taken within one year of the child’s birth or placement);
- To care for the employee’s spouse, child, or parent who has a qualifying serious health condition;
- For the employee’s own qualifying serious health condition;
- For exigencies related to foreign deployment of a military member who is the employee’s close relative;
- An eligible employee who is a covered service member’s spouse, child, parent, or next of kin may also take up to 26 weeks of FMLA leave in a single 12-month period to care for the service member with a serious injury or illness.
Requesting FMLA Leave
To request FMLA leave, employees must provide 30 days advanced notice of the need for FMLA leave, or notify an employer as soon as possible. The employer will inform the employee if they qualify for leave under FMLA, leave that can be taken on a medically necessary intermittent, reduced schedule, or longer term basis. Employees may choose to use accrued paid leave, or their employer may require that an employee use accrued paid leave in accordance with the employers paid leave policy while taking FMLA.
Benefits and Protections Under FMLA Leave Benefits and protections afforded by FMLA leave include the continuation of an employee’s health insurance coverage and job restoration to the same job or nearly the same with the equivalent pay, benefits, terms and conditions when an employee returns to work. Additionally, an employer may not interfere with an employee’s FMLA rights or retaliate against an employee for inquiring about or using FMLA leave.
Employee Eligibility for FMLA Leave
If an employee works for an employer covered under FMLA (at least 50 employees within 75 miles), the employee is eligible for FMLA leave if they have been employed for at least 12 months; they have at least 1,250 hours of service in the 12 months preceding FMLA leave; and work at a location where the employer has 50 employees within 75 miles of the employers worksite, which may include teleworkers and remote workers who report to or derive assignments form the employer location.
Contact an Experienced FMLA Attorney for Help
Many who work remotely or telecommute for work may not understand how Family and Medical Leave Act (FMLA) protections apply to their situation. When an employee is retaliated against or has suffered an adverse employment action after requesting or taking FMLA leave, it is important to seek the counsel of an experienced Wisconsin Family Medical Leave Act attorney as soon as possible. Contact FMLA law firm of Alan C. Olson & Associates for your free consultation at 262-785-9606.
