THE FMLA REMOTE EMPLOYEE FRAMEWORK
The FMLA requires certain private employers to give eligible employees up to 12 weeks of unpaid leave to care for their serious medical condition or the serious medical condition of a family member. A private employer with more than 50 employees within a 75-mile radius of the employee’s place of employment must provide the required 12-week leave. An eligible employee is one who meets all of the following conditions:
- Has been employed for at least 12 months
- Have been employed for at least 1,250 hours in the 12-month period immediately preceding the start of the leave
- Is employed at a job site where 50 or more employees are employed by the employer within a radius of 75 miles from that job site.
One of the most difficult aspects of determining leave eligibility under the FMLA is whether the employee is employed by a “covered employer” (that’s to sayconstruction site with 50 or more employees within a radius of 120 km).
The FMLA is silent on its applicability to remote workers. However, the United States Department of Labor’s implementing regulations state that “[f]or employees without a fixed site, . . . the site is the place to which they are assigned as their home base, from which their work is assigned or to which they report. Further away, “[a]n the employee’s personal residence is not a place of employment in the case of employees. . . who travel through a sales territory and who generally go to work and return from work to their personal home, or employees who work from home, as in the context of the concept of flexiplace or teleworking.”
A CASE STUDY ON THE APPLICABILITY OF THE FMLA TO REMOTE EMPLOYEES
Recently, a Texas court analyzed the issue of remote employees and the applicability of the FMLA. In Landgrave v. Fortec Medical Inc., a remote employee sued her former employer, Fortec, alleging it failed to grant her leave under the FMLA after finding she was ineligible because the company failed to 50 employees within a 75 mile radius in Texas. Landgrave was employed as a surgical laser technician and was hired as a remote employee. Landgrave argued that his “workplace” under the FMLA was the company’s corporate headquarters in Ohio, which had more than 50 employees. Fortec claimed that its “yard” was in Texas.
Although Landgrave was hired by Fortec’s Ohio headquarters, she lived and worked primarily in Texas (sometimes her job required her to travel to other states, but not Ohio). Landgrave’s supervisor was also a remote employee working from Texas. The supervisor managed the South Central Texas region, overseeing region logistics, matching surgical technicians with assignments, monitoring Landgrave’s performance, and processing Landgrave’s leave requests.
The court denied Fortec’s motion for summary judgment because it found that there was a genuine question of fact as to Landgrave’s yard and therefore its FMLA eligibility. To win summary judgment, Fortec would have had to establish that the Ohio headquarters site was not its home base, the site that assigned it the job, or the site to which it reported. A brief overview of each issue is provided below.
- Residence. The court found that there were insufficient facts to establish that the Ohio location was Landgrave’s home base. Using the Worker Adjustment and Retraining Act as a guide, the tribunal said an employee’s home base “must, at a minimum, be a place where the employee is physically present at any given time during the ‘a typical business trip’ and ‘does not refer to the physical basis of the employer’s activities. . . but rather at the employee’s physical base. Since Landgrave was never physically present in Ohio, she could not establish Ohio as her home base.
- Work assignment. The court found that there was a genuine question of fact regarding the place of creation/origin of the assignments, and the dispute over this precluded summary judgment. The assignment site is the “source of the daily instructions” given to the employee. It is not determined by the location of payroll or other centralized management or personnel functions. It’s not just about where the instructions are transmitted, but rather “where were the people who were ultimately responsible for creating and receiving the assignment information.” In Landgrave, the employee’s supervisor assigned the work from his home in Texas, and he directed the cases to specific employees in the Texas region. However, Landgrave called his supervisor’s work assignment a “click[ing] the mouse on his computer at home and send[ing] the instructions for [Ohio] to such and such a technician in his region. The court found that although Landgrave’s supervisor appeared to have more of a role than “mere conduit”, his duties appeared incidental to the actual posting activity, which created a justifiable question of fact for the jury as to whether this assignment came from head office. in Ohio.
- Report a construction site. The court also found that there was a genuine question of fact as to the reporting structure and authority of Landgrave’s supervisor, so the question also precluded summary judgment. The location at which an employee reports is determined based on “the location of personnel who were primarily responsible for the examination. . . reports and other information sent by the [employee]in order to record [tasks], evaluate employee performance, develop new sales strategies, etc. It is undisputed that Landgrave’s supervisor did not review her reports. In fact, Landgrave only sent reports to Ohio and never sent anything to his supervisor. Fortec focused on the fact that her Texas supervisor valued her job and had the authority to discipline and evaluate her. However, the company’s claim lacked factual support at the summary judgment stage, as there was no evidence that her supervisor conducted assessments or had the authority to influence her employment status. For these reasons, Fortec’s argument on this point was not strong enough to warrant summary judgment.
Since the court’s decision, the parties have reached a confidential settlement regarding Landgrave’s FMLA claims.
PRACTICAL OPTIONS FOR EMPLOYERS WITH A REMOTE WORKFORCE
Given the legal framework of the FMLA described above and the insight of the Landgrave decision, employers have three options for managing FMLA leave with a remote workforce.
- Conservative approach. Employers may take the more conservative approach by determining that the FMLA applies to remote employees (assuming the terms of employment and hours worked requirements are met). Approaching eligibility from this perspective will help employers avoid potential FMLA violations and related legal claims. However, in some factual situations, this option may provide more generous leave than employees are entitled to, and FMLA leave is often difficult for employers to manage.
- Assertive approach. Employers can undertake the FMLA analysis themselves by affirmatively assigning a reporting site or assignment site and then ensuring that work site meets the requirement of 50 or more employees within 75 miles. This approach appears to be supported by FMLA regulations, which state: “[f]or employees without a fixed site. . . the construction site is the site to which they are assigned as their home base, from which their work is assigned, Where to which they report”. Employers should note, however, that everyday occurrences can undermine the express designation of an employer. For example, if an employer, by policy and written agreement, determines that all remote employees report to location X, but no employees actually report to location X, these facts may undermine the employer’s designation. reporting site employer. The same concept applies to an assignment site. If an employee never receives assignments, or receives only a small number of assignments, from worksite Y, a court may have difficulty in concluding that Y is indeed the precise worksite on which to base the 75 mile radius test. Anyway, as seen in Landgravethe courts have the discretion to use any of the three yard bases described above for the 75 mile test.
- The Landgrave Approach. Employers can take a more liberal approach and analyze FMLA application to the remote workforce on a case-by-case basis. This would involve looking at each employee’s home base, assigning a location and reporting location, and then determining if any of those locations have 50 or more employees within a 75-mile radius. If they do not, the employee would not be eligible for FMLA leave. But as shown Landgravethis approach presents a higher risk of litigation due to potential factual conflicts on the sites involved.
In the wake of COVID-19, more and more companies are allowing their employees to work remotely. When it comes to family and medical leave (paid or unpaid), employers should make sure they understand the eligibility rules for their remote employees under federal and (sometimes conflicting) state law. In the case of the FMLA, it’s important for employers to understand the company’s workflow and keep track of the various job sites for all employees, including the most remote.