Q: We have more than 50 employees nationwide, but based on their distribution at various regional offices, no one facility has 50 employees working within 75 miles of that worksite. Does the federal FMLA apply to us?
A: It's likely that your company is subject to the law, but also that none of your employees is entitled to FMLA job-protected leave. Let me explain.
In determining whether or not your company has 50 or more employees and is therefore covered by the federal FMLA, you must count all employees regardless of location: full-time, part-time, and remote workers in home or corporate offices. Next, you need to assess whether a specific employee is entitled to FMLA protections based on:
- The reason leave is needed (must be an FMLA qualifying reason)
- The employee's length of service (must have at least one year of employment with your company)
- The number of hours the employee worked in the past year (must be at least 1,250 hours worked)
- Work location (must be working at a location where there are at least 50 employees working within 75 miles of that worksite)
In your case, it appears this last element is not met, so you have a situation where your company is subject to the FMLA, but no individual worker is entitled to FMLA leave because of the geographic distribution of the workforce.
You still must display at all worksites the U.S. Department of Labor poster, WHD Publication 1420 (available in CBIA's Poster Compliance Kit), notifying all employees that they work for an FMLA-covered employer.
Upon a request from an employee or your learning that an employee is in need of time off that might be FMLA qualifying, you must respond with the U.S. Department of Labor Form WH-381, Notice of Rights and Responsibilities, and check off on the first page the section indicating that the employee is "not eligible for FMLA leave because he or she does not work and/or report to a site with 50 or more employees within 75 miles."