On May 3, 2022, Venable counsel Emily Tortora was quoted in HR Dive on whether the Family and Medical Leave Act (FMLA) will apply to companies that operate completely online. FMLA grants eligible employees of covered employers unpaid, job-protected leave for certain family and medical reasons.
According to the article, 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. The employee must work at a location where the employer has at least 50 employees within 75 miles. The guidance specifies that an employee’s personal residence does not count as a worksite.
“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.,” Tortora told HR Dive.
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 from otherwise eligible individuals, Torotora said. At a minimum, the employer opens itself to a risk of litigation. And if a court were to weigh 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,” Tortora said.
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