On February 9, 2023, the DOL issued Field Assistance Bulletin (FAB) 2023-1 to provide guidance to internal staff regarding remote workers. Among other items, the FAB addresses FMLA eligibility when employees telework or work away from an employer’s facility.
FAB 2023-1 explains 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. To review, employees are eligible for FMLA leave when they have worked for the employer for at least 12 months, have at least 1,250 hours of service for the employer during the 12-month period immediately preceding the leave and work at a location where the employer has at least 50 employees within 75 miles.
According to the FAB, when an employee works from home or teleworks, their worksite for FMLA eligibility purposes is the office to which they report or from which their assignments are made. Therefore, the count of employees within 75 miles of a worksite includes all employees whose worksite is within that area, including employees who telework and report to or receive assignments from that worksite.
The FAB provides examples to illustrate these concepts. In one example, many employees of an advertising company telework from different cities and states, but all are assigned projects by the manager at the company headquarters. Accordingly, the headquarters is the worksite for these employees for FMLA eligibility purposes, and they would be included in the count of employees within 75 miles of a worksite, regardless of where they are geographically located. In the example, 300 employees, including the teleworking employees, work at or within 75 miles of the company’s headquarters. Therefore, a teleworking employee is employed at a worksite where 50 or more employees are employed by the employer within 75 miles, even though the employee does not physically work within 75 miles of the company headquarters.
Employers, particularly those with remote workers, should be aware of this FMLA guidance. The FAB also provides guidance regarding proper pay for remote work and reasonable break time for nursing remote employees under the Fair Labor Standards Act, which employers may want to review with their employment law counsel.
DOL FAB No. 2023-1 »
PPI Benefit Solutions does not provide legal or tax advice. Compliance, regulatory and related content is for general informational purposes and is not guaranteed to be accurate or complete. You should consult an attorney or tax professional regarding the application or potential implications of laws, regulations or policies to your specific circumstances.
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