Among its many benefits, telework helps employees meet both work and personal obligations. But, ironically, by teleworking some employees could be forfeiting the protections promised under the Family and Medical Leave Act (FMLA) –also intended to help employees meet work and personal obligations.

The FMLA provides 12 weeks of job-protected leave to eligible employees upon the birth or adoption of a child; to care for a spouse, child or parent with a serious health condition; or to deal with their own serious health condition.  

To be eligible for FMLA, employees must have been employed by the same company for at least 12 months and for at least 1,250 hours during the 12 months immediately preceeding FMLA leave. Employees must also work at a worksite where at least 50 other coworkers are employed within 75 miles of that worksite.  Companies with teleworkers, as well as multiple small distributed offices, might find these conditions difficult to satisfy.

A key question teleworkers seeking FMLA leave must answer at the outset: Where is my worksite for purposes of determining whether 50 or more employees are employed within 75 miles?  

The FMLA regulations issued by the Department of Labor (DOL) say an employee’s worksite “will ordinarily be the site the employee reports to or, if none, from which the employee’s work is assigned.” They also spell out that an at-home employee’s worksite is not the employee’s personal residence.   

Unfortunately, applying these provisions doesn’t always clarify the teleworker’s worksite. In the case of Collinsworth v. Earthlink/Onemain, Inc., the plaintiff (a teleworker) alleged that she worked both from home and from an Earthlink office located in Overland Park, Kan., but that her “worksite” (for FMLA purposes) was Earthlink’s office in Pasadena, Calif., because she received her assignments and sent her work there. Asserting that Earthlink employed 50 or more people within 75 miles of the Pasadena office, she argued she was eligible for FMLA. Earthlink disagreed, arguing that the plaintiff’s worksite was the Overland Park office, and Earthlink employed fewer than 50 employees within 75 miles of that office. 

Earthlink requested the court dismiss the plaintiff’s FMLA claim without a trial, but the court denied the request.  Applying the DOL’s regulation, the court held that the issue of where the plaintiff worked was one for trial.  
 
A dispute concerning a telecommuter’s worksite might also arise if the telecommuter reports to, and receives assignments from, a supervisor who works from home. In such a case, is the telecommuter’s worksite the company’s office or the supervisor’s home office?  This question arose in Cialini v. Nilfisk-Advance America Inc.