The Department of Labor (“DOL”), in Field Assistance Bulletin No. 2023-1 (“FAB”), has explained how to apply the eligibility rules under the Family and Medical Leave Act (FMLA) when employees telework or work away from an employer’s facility.
Law. Under the FMLA, certain employers must provide up to 12 weeks of unpaid leave during a 12-month period to eligible employees for certain specified events, such as: personal illness; caring for a seriously ill family member; childbirth; adoption or placement of a child; military caregiver leave and military exigency leave.
Employees are generally eligible for FMLA leave if they: (i) have worked for their employer for at least 12 months, (ii) have worked 1,250 hours over the past 12 months; and (iii) work at a location where the employer employs 50 or more employees within a 75-mile radius.
In addition to providing job-protected family and medical leave, employers must also maintain any group health plan coverage for an employee on FMLA-protected leave under the same conditions that would apply if the employee had not taken leave.
Once the FMLA leave period is concluded, the employer is generally required to restore the employee to the same or an equivalent position with equivalent employment benefits, pay, and other terms and conditions of employment.
FAB. In the FAB, DOL explains that all hours worked are counted for purposes of determining an employee’s FMLA eligibility, including hours when an employee teleworks from home or works at other locations.
When an employee works from home or other locations, his worksite, for FMLA eligibility purposes, is the office to which he reports or from which his assignments are made. “Thus, if 50 employees are employed within 75 miles from the employer’s worksite (the location to which the employee reports or from which…assignments are made), the employee meets that FMLA eligibility requirement.” The count of employees within 75 miles of a worksite includes all employees whose worksite is within that area, including other employees who telework and report to, or receive assignments from, that particular worksite.
Field Assistance Bulletin No. 2023-1 is located at: