Location of Worksite under FMLA

The FMLA provides that employee are eligible for FMLA leave if they have worked at least 12 months for an employer, worked 1,250 hours during the 12 months immediately prior to requesting leave, and work at a location that has 50 employees within 75 miles. This requirement, however, creates uncertainty when an employee has joint employers, such as when the employee is working at a site through an off-site temporary agency. Under such circumstances, the regulations provide that when the employee has worked at least 12 months at a worksite, the employee will be considered to be employed where he physically reports. 29 C.F.R. section 825.111(a)(3).

This means, for example, that the employee, referred by a small temp agency to work at a large company shouldn’t be concerned about being ineligible for FMLA leave, as it’s the size of the number of employees at the physical location where he works that determines his eligibility; not the size of the temp agency.

In the past, compliance issues have arisen when evaluating FMLA leave requests by employees who telecommute / work from home. The regulations now confirm that the worksite for such employees is the location where they report and receive assignments, and not their physical location. This is logical, as counting employees at home wouldn’t make any sense.

The whole idea behind FMLA criteria is imposing this obligation on the larger employers and providing this benefit to employees who have already provided substantial benefit to the company over the period of time. Whether an employee works from home or not does not and should not matter under the circumstances. 29 C.F.R. section 825.111(a).

To find out more about FMLA and CFRA leave, check out this FMLA/CFRA comparison chart prepared by the Department of Fair Employment and Housing.