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To be eligible for leave under the federal Family and Medical Leave Act (FMLA), an employee must meet certain requirements.  The employee must have been employed by the company for a minimum of 12 months and must have worked at least 1,250 hours in the 12 months preceding the start of the FMLA leave. The employee must also work at a location where the employer has at least 50 employees within a 75-mile radius. 

The 50-employee calculation became much more confusing with the rise of remote and hybrid employees.  If the employee is hybrid- do you use the residence or the office employee count?  If the employee is fully remote and there is no office nearby, is he or she not entitled to FMLA?

In its recent non-binding-but-still-helpful guidance in its Field Manual, the DOL clarified that we were asking the wrong question.  In fact, DOL wants employers to define “where the employee works” not by where the employee is physically located but rather by where they receive assignments.  In other words, if the employee works from home but their supervisor or department works out of a corporate office, and there are at least 50 employees within a 75-mile radius of that office, the DOL says the employee is covered by the FMLA. 

As a reminder, in addition to the federal FMLA requirements, employers must also consider the employee’s eligibility for family and medical leave benefits under state laws, which may have different eligibility requirements. For example, in Maryland, once the Time to Care Act goes into effect the new paid FMLA will apply to employers with at least one employee in the state and require employees to have worked at least 680 hours over the previous 12 months, but does not have a requirement for workers to be within a specific distance of the worksite.  And DC has a well-established state FMLA program with significantly different requirements and entitlements than those established by the federal FMLA. 

If you have any questions about this Alert, we encourage you to reach out to your Shulman Rogers contact for solutions and recommendations for addressing these issues.