An HR Guide to FMLA Eligibility and Remote Employees

The Family and Medical Leave Act (FMLA) became law in 1993  —  well before the rise of remote work. The statute carries numerous rules and regulations for employers that make managing, implementing, and tracking leave requests tricky and time consuming. Add remote and hybrid workers to that mix, and FMLA management becomes downright complicated. Many leave managers want to know how FMLA works for their remote employees. 

One of the basic provisions of the FMLA states that, to be eligible for leave, an employee must “work at a location where the employer has at least 50 employees within 75 miles.” How does this rule interact with the new realities of remote work? Are remote workers eligible for FMLA leave? What about hybrid workplaces and fully distributed workforces? 

You’ll find the answers to these questions in this blog. Plus, we’ll discuss how employers can make the complex task of leave management in remote and hybrid settings simple.

What is the Family and Medical Leave Act?

First, to take FMLA leave, an employee must work for a covered employer. A few conditions that an organization must meet to be covered by the FMLA will be discussed in greater detail below. Generally speaking, public- and private-sector employers that employ “50 or more employees in 20 or more workweeks in the current or previous calendar year” must comply with the FMLA’s provisions according to the U.S. Department of Labor (DOL). 

Next, employees must be eligible for FMLA leave themselves. Employees qualify once they’ve worked for their employer for 12 months. This time doesn’t have to be consecutive. In fact, employees can accumulate those 12 months over a seven-year period. Employees also need to have worked 1,250 hours within 12 months prior to the time of their leave to be eligible.  

Finally, employees must have a qualifying reason to take FMLA leave. As its title indicates, the FMLA exists for workers to take leave for family or medical issues. These issues, according to DOL, can include:

• The birth of a child and to care for the newborn child within one year of birth.
• The placement with the employee of a child for adoption or foster care and to care for the newly placed child within one year of placement.
• To care for the employee’s spouse, child, or parent who has a serious health condition.
• A serious health condition that makes the employee unable to perform the essential functions of his or her job.
• Any qualifying exigency arising out of the fact that the employee’s spouse, son, daughter, or parent is a covered military member on “covered active duty.”

To add to the complexity of the FMLA, the leave can be consecutive or intermittent. And no matter what type of leave employees are taking, employers must keep communication boundaries in mind.

What is the 50/75 rule?

Let’s discuss some of the nuances of employer and employee eligibility. 

Earlier, we talked about two qualifications for FMLA leave. Employees must work for a covered employer for at least 12 months. And they must have racked up at least 1,250 hours of service with their employer in the 12 months prior to their leave.  

Employees also must satisfy a third qualification: The 50/75 rule. This rule states that, to qualify for FMLA leave, employees must work at a location where 50 employees work for an employer within 75 miles. What does this mean for remote employees and distributed workforces? 

DOL answered this question in recent guidance. In a February 2023 field assistance bulletin, DOL said that “employees who telework are eligible for FMLA leave on the same basis as employees who report to any other worksite to perform their job.”

What determines a remote or hybrid employee’s worksite?

This statement from the Labor Department doesn’t fully answer the question of whether remote employees can qualify for FMLA leave — especially if they work for a fully remote employer. To answer that question, we must consider the definition of a worksite. 

In the same guidance, DOL clarified that an employee’s personal residence is not a worksite for FMLA eligibility purposes. A worksite, rather, is the office to which they report or the place where their 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 their assignments are made), the employee meets that FMLA eligibility requirement,” DOL said. 

Consider the following example. Let’s pretend there’s an employee who works in data processing for an advertising company headquartered in Chicago. The employee works remotely from her home in Atlanta, and many of her coworkers also work remotely in different cities and states. 

What does DOL make of this scenario? “All teleworking employees are assigned projects for data analysis from the manager who works at the company headquarters,” DOL clarified. For FMLA purposes, the Atlanta resident’s worksite is the office: the Chicago headquarters. In fact, the Chicago headquarters is the worksite for her coworkers located all around the U.S. Assuming this employee satisfies the other requirements of eligibility, she would qualify for FMLA leave.

How do I know if a remote employee is eligible for FMLA?

Remote employees must satisfy the same FMLA eligibility requirements as in-person workers.

• They must work for an employer that employs 50 or more employees in 20 or more workweeks, in either the current calendar year or previous calendar year. Or they must work for a public agency or a local education agency, both of which are covered employers.
• They must have worked for their employer for a total of 12 months over a period of seven years.
• They must have accumulated at least 1,250 hours of service with the employer in the 12 months prior to their leave.
• They must work at a worksite where the employer has at least 50 employees within 75 miles.

In the previous section, we discussed how the 50/75 rule applies to remote and hybrid workers. But what about employees who work for companies that operate solely online and have no on-the-ground headquarters?  

Employers are still waiting on a firm answer from DOL. But attorneys have said that it wouldn’t be surprising if the DOL extended FMLA eligibility to fully remote workforces. In the meantime, fully remote companies that don’t grant FMLA leave to otherwise-qualified employees may open themselves up to the risk of litigation. 

If an employee isn’t eligible for leave, it’s important to remember that you can still support them. You can work together to determine their needs and weigh alternative options.

Can I use technology to better manage FMLA and the 50/75 rule?

Managing FMLA leave is complicated enough with local, onsite workforces. Adding remote and hybrid employees makes things even more complex.  

And to make things even more challenging, leave requests are on the rise. For the second year in a row, AbsenceSoft has found that most (62%) HR managers are seeing an increase in leave requests. Of those who reported an increase, 75% saw the number of leave requests increase by 20% or more. But there is good news, technology can make the whole process much faster and easier to manage.

AbsenceSoft can also create custom groups of employees that are eligible and not eligible for FMLA leave, making complex workforce management simple. Our implementation team is made up of leave experts who can customize the system to your organization. Your FMLA tracking and eligibility grouping will be implemented to meet your specific needs. And if you are a third-party administrator, you can set up different rules for different clients within AbsenceSoft. 

Conclusion

If your organization is navigating the new world of remote work, make sure you have the tools to calculate eligibility for FMLA accurately every time. Platforms like AbsenceSoft can help you manage leave requests simply, effectively, and compliantly. Schedule a demo with our CLMS-certified experts today.