The Employer’s Guide to the FMLA for Remote Employees

Remote work can offer plenty of benefits for your workforce, but it can also introduce complications when it comes to managing a leave of absence. Whether or not remote workers can take leave under the Family and Medical Leave Act (FMLA) is a complex question that comes down to their reason for leave and their location.

In most cases, an employee would need to work within a 75-mile radius of 50 coworkers to take FMLA leave — but does that apply to remote employees? To determine that, we’ll take a look at a recent court case and some guidance from the U.S. Department of Labor.

Let’s learn how to navigate the FMLA for remote employees, including how to define an employee’s worksite — which becomes critical for determining if FMLA benefits apply — and how to create your own remote work policy.

What Is FMLA for Remote Employees?

The Family and Medical Leave Act is a federal law that provides up to 12 weeks of unpaid leave in a 12-month period for the following qualifying conditions:

• Medical reasons, meaning to address the employee’s own serious health condition or an injury or illness in the family
• Parental leave following the birth, adoption, or fostering of a child
• Military reasons, such as military caregiver leave or a qualifying exigency

According to this employment law, eligible employees are entitled to 12 workweeks of job-protected leave if they meet the following FMLA eligibility requirements:

• Working for a covered employer for at least 12 months
• Performing 1,250 hours of work in the previous 12 months
• Working at a worksite with at least 50 employees in a 75-mile radius (the “50/75 rule”)

It’s easy to know if a remote employee meets the first two criteria, but the third one can be confusing. Is the worksite the employee’s home, your company headquarters, or a temporary home base if working on a project out of town? And what if your entire team is distributed around the country? Let’s take a look at some examples to see how the FMLA applies to remote employees.

Are Remote Employees Covered by the FMLA?

The short answer is that yes, FMLA regulations apply to remote workers who meet the employee eligibility requirements. If you have more than 50 employees working within a 75-mile radius of each other, then they may be entitled to take FMLA leave. For FMLA eligibility purposes, onsite and teleworking employees have the same rights.

But what if an employee works in multiple locations or is assigned somewhere outside of a 75-mile radius? The most famous example is Landgrave v. ForTec Medical Inc., in which an employee sued her employer for denying her FMLA leave request.

In this lawsuit, Vanessa Landgrave argued that her worksite was the company headquarters in Ohio, while her employer argued that her worksite was in Texas, where she was stationed. The court also considered whether the worksite could be a third location, Illinois, where her supervisor was based.

The court found that “ForTec's position is internally inconsistent” and that the company failed to properly investigate the 50/75 rule under the FMLA. 

Employers can reduce the risk of legal issues by proactively defining an employee’s worksite, rather than determining it on a case-by-case basis for each remote employee who requests FMLA leave.

DOL Guidance on the FMLA for Remote Employees

In 2023, the Department of Labor’s Wage and Hour Division released Field Assistance Bulletin No. 2023-1 in order to clarify the rules for remote employees under the FMLA and the Fair Labor Standards Act (FLSA). According to their guidelines:

“The employee’s personal residence is not a worksite. … When an employee works from home or otherwise teleworks, their worksite for FMLA eligibility purposes is the office to which they report or from which their assignments are made.”

This means that if a company has 50 employees working remotely but they all report to the company’s headquarters in Washington, D.C., they’re all considered to be working at the “employer’s worksite” in D.C. and are therefore eligible for FMLA leave.

This guideline still creates some uncertainty for distributed teams that don’t have any worksite at all, however, this bulletin does demonstrate that in many cases, remote workers have FMLA protections.

Can Remote Employees Work on FMLA Leave?

Another question that might arise regarding FMLA for remote employees is whether working while on a leave of absence is permitted. When an onsite employee takes a leave of absence, it should be clear to anyone the employee reports to that they’re out of office and unavailable for work. But with remote workers, it can be less obvious that they’re on leave.

If a remote employee wants to catch up on work while they’re on leave and recovering at home, can they do so? In most cases, yes — as long as it’s voluntary. An employee can choose to log into their work accounts and respond to emails, and their employer can make basic requests like asking for documents or passwords but can’t ask them to fulfil their ordinary work duties.

As an employer, it’s important to be careful when communicating with remote workers on leave in order to avoid interfering with their FMLA rights.

FMLA for Remote Employees: Best Practices

Many of the FMLA rules that apply to onsite employees will apply for remote workers, such as FMLA confidentiality requirements. But there are some additional factors to consider. Follow these three best practices to ensure compliance with employment law:

1. Have a Remote Work Policy

A remote work and leave of absence policy ensures that everyone is on the same page about the FMLA so that individual managers don’t have to call the shots on a case-by-case basis. Be sure to distinguish between:

• Working from home as a company policy
• Working from home as an reasonable accommodation under the Americans with Disabilities Act (ADA)
• Taking a leave of absence under the FMLA

Include all this in your employee handbook and as part of your onboarding process so employees know what to expect and how to submit their own leave of absence request.

2. Use a Leave Management Platform

Navigating the FMLA for remote employees can be complex, so use a leave management platform like Pulpstream to simplify it. Pulpstream features a built-in custom rule engine that allows you to automatically assess an employee leave request against the FMLA eligibility criteria — as well as state leave laws that may also apply.

Plus, you can use the platform to track employee attendance, which is key to assessing eligibility. Both onsite and remote work hours count toward an employee's 1,250 hours of work to qualify for FMLA leave. You can also track intermittent leave, when an employee alternates between periods of leave and periods of remote or onsite work.

3. Communicate Clearly

Finally, be sure to communicate clearly throughout the leave process. Use leave of absence automation to ensure that remote employees get notified by email or SMS when they need to fill out FMLA forms or provide a medical certification.

Digitizing the leave of absence process allows remote workers to access their leave entitlements promptly, without having to come into the office or mail in paperwork. You can also use Pulpstream to navigate the return-to-work and ADA interactive process, facilitating an employee’s return to the office or to their home workspace.

Facilitate the FMLA for Remote Employees With Pulpstream

Remote workers have the right to take leave under the Family and Medical Leave Act, but there’s conflicting legal advice on how to assess their eligibility. Remote employees who work within a 75-mile radius of 50 coworkers are clearly covered, but employees on fully distributed teams in far-flung locations fall into a grey area.

The latest advice from the Department of Labor states that an employee’s worksite is the location or headquarters that they report to, not their personal residence.

To avoid legal issues, streamline leave of absence management with Pulpstream. Our cloud-based platform makes it easy for remote employees to submit requests online, while our custom rule engine can automatically assess their FMLA eligibility.

Request a demo today to see how Pulpstream can make the difference!