In HR Dive's Mailbag series, we answer HR professionals' questions about all things work. Have a question? Send it to [email protected].
Q: Will the Family and Medical Leave Act apply to companies that operate completely online?
There’s an answer to this question, but before we get there, let’s look at some context.
According to the U.S. Department of Labor, the Family and Medical Leave Act grants eligible employees of covered employers unpaid, job-protected leave for certain family and medical reasons. "Eligible employees" is the key term in this sentence, at least as it pertains to the question at hand.
To be eligible for FMLA leave, a worker must satisfy a list of requirements. The employee must have worked for a covered employer for at least 12 months and built up at least 1,250 hours of service in the 12 months preceding the leave.
A final aspect of eligibility is the one that’s raising questions for remote companies: The employee must work at a location where the employer has at least 50 employees within 75 miles. According to FMLA guidance from DOL, a worksite is “the office to which [employees] report or from which they receive assignments.” The guidance specifies that an employee’s personal residence does not count as a worksite.
So what do employers that operate online and without an office do about FMLA leave?
Emily M. Tortora, a labor and employment attorney at Venable LLP, helped answer that question. “To the extent that fully remote entities become more prevalent after the disruptions of the COVID-19 pandemic, it would not be surprising for FMLA coverage to ultimately extend to those entities who employ 50 or more employees anywhere in the U.S.,” she told HR Dive over email.
The likelihood of this scenario appears to increase when examining state and local leave laws analogous to the FMLA, Tortora noted. “The trend … is to be more protective of employees and their need for leave, not less,” she said. “But the prevalence of fully remote entities is likely key; if there isn’t a critical mass of such entities throughout the country, the issue might not attract enough attention.”
Even without firm guidance on remote employers from DOL, there is some risk to fully remote employers that decide to withhold FMLA leave to otherwise eligible individuals, Torotora said. At minimum, the employer opens itself to risk of litigation. And if a court weighed in, certain factors could influence the assessment. If all of an employer’s 70 employees received direction from the same supervisor, for instance, and all of them worked remotely but within 75 miles of that supervisor, a court could “find that fact to weigh in favor of coverage,” Torotra said.
Pay attention to state and local laws
Leave administration grows more complicated for employers with remote employees working in a variety of locations, including across state lines. And that situation is all but a given considering the increased flexibility fully remote work allows.
“In that case, employers would need to consider whether individuals are covered by any state or local FMLA analogs in those jurisdictions,” Tortora said. “An employer could have differing obligations to different employees, with the obvious administrative difficulty of tracking and adhering to those various obligations.”
With that in mind, employers must follow all practices mandated by the relevant statutes, Tortora said. An employer with even one eligible employee in New York must allow that worker to take paid family leave under the state’s FMLA analog. And the employer must follow the notice and request procedures required by that law, as well.