Companies with teleworkers need to tread carefully when determining who’s eligible for FMLA benefits.
Companies with teleworkers need to tread carefully when determining who’s eligible for FMLA benefits
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.
In Cialini, the Court considered the worksite of 15 sales representatives who worked from home offices. The company’s sole North America facility was in Malvern, Penn. The parties agreed that the sales reps’ worksites were not their home offices. But was their worksite the Pennsylvania office? The employer didn’t think so. The sales representatives reported to, and received assignments from, regional sales managers located in either California or Rhode Island, who also worked from home. The court determined that FMLA regulations do “not prohibit consideration of a supervisor’s personal residence as ‘the office to which [a salesperson] … reports,’ or from which the sales person receives an assignment.”
Uncertainty about the location of a telecommuter’s worksite could also affect FMLA eligibility for office-based workers. Indeed, in Cialini, the employee seeking FMLA coverage was stationed at the Pennsylvania facility, not a teleworker. He was considered ineligible because the off-site sales representatives were excluded from the tally of employees at the Pennsylvania worksite and, without them, the site’s tally didn’t reach 50.
Similarly, the determination of a telecommuter’s worksite was relevant to whether a non-telecommuter was eligible for FMLA coverage in Grimsley v. Fiesta Salons Inc. In Grimsley, the employer was an Ohio corporation operating a chain of hair care salons in the Midwest; the plaintiff, an employee at a Michigan salon. The employer argued that the employee wasn’t eligible for FMLA coverage because the company did not employ 50 workers within 75 miles of the employee’s salon.
The plaintiff argued that a particular telecommuter should have been counted, but the court disagreed. Although the telecommuter supervised all the Michigan salons from her home, she received her assignments from the company’s Ohio office, so that was her worksite. Because the Ohio office was not within 75 miles of the plaintiff’s salon, the telecommuter could not be included when assessing the plaintiff’s eligibility.
While applying the FMLA regulations to define employees’ worksites might not always yield clear answers, a company’s reliance on telework does not always preclude its employees from coverage. In fact, the regulations could actually improve the odds that members of a distributed workforce will be covered.
Let’s say a telecommuter worked from her California home for a New York firm with no other west coast employees, and that the law regarded the telecommuter’s home office as her worksite. That worksite would not meet the 50-employees-within-75-miles standard.
But by defining a telecommuter’s worksite as the office to which the telecommuter reports and from which she receives assignments, the regulation links telecommuters to facilities that are more likely to employ 50-plus people, establishing FMLA eligibility. Further, an office that employs fewer than 50 workers within 75 miles might become a worksite of adequate size when telecommuters are counted. The addition of these teleworkers could establish both their eligibility for FMLA benefits and the eligibility of in-office employees physically located at that site. Thus, teleworkers count.
Editor’s note: The information provided in this article does not constitute legal advice for specific cases. Readers seeking such advice must consult their own legal counsel.
