Case: Struggling with determining remote employee FMLA eligibility?


So are the courts

Vanessa, a technician, worked from her home in Texas. Her boss, Alvin, also worked out of his home in Texas. Alvin's boss, Dave, worked out of his Chicago home, and Dave reported to Joe, who worked at the corporate home office in Ohio. When Vanessa took FMLA leave to care for her mother, the HR department reviewed its policy (which did not address remote employees) and told Vanessa she was not eligible because she did not work at a location with at least 50 company employees within 75 miles. Vanessa took the leave and was terminated. She sued, arguing that her worksite was the Ohio location, which had more than 50 employees. The company had only 20 employees in Texas.

In court, the employer claimed that Vanessa's contact with the Ohio office was limited to administrative, HR, information technology, and billing issues; and that she had more contact with her boss. Her boss received orders through the company software application and passed them on to employees like Vanessa. Therefore, the employer argued, her workplace was in Texas, not Ohio.

After a procedure was complete, however, technicians prepared a report regarding a case and sent it to the Ohio office. A team in Ohio reviewed the case, made corrections if necessary, and verified the report. Ohio employees could also reopen the case and ask the technician to make the corrections.

Vanessa asserted that the employer failed to investigate the FMLA's applicability to remote workers before terminating her, and referred only to its policy. She pointed out that, although she worked remotely, the Ohio office was her worksite and, because that office has more than 50 employees, she was eligible for FMLA leave.

The employer countered that Vanessa was not eligible because:

  • She was a remote employee with no fixed worksite,
  • She reported to and received assignments from her boss, Alvin, in Texas, and
  • The company had fewer than 50 employees within 75 miles of Alvin's home/worksite.

The employer, however, had to establish that the Ohio location did not qualify as Vanessa's worksite because it was not:

  • Her home base,
  • The site that assigned her work, nor
  • The site to which she reported.

Vanessa never physically went to the Ohio location, so it was not her home base. The issue was whether Ohio was her assigning site or where she reported. This was complicated by the company's use of a centralized system that created assignments. Instructions originated in Ohio and were sent to remote employees through the system.

The employer argued that Alvin was giving the assignments, not the computer system. Vanessa countered that Alvin simply clicked his computer mouse and sent instructions from Ohio to the technicians. Vital information, however, came from Ohio.

Given the competing interpretations of the reporting structure and Alvin's authority, the court denied the employer's request for summary judgement and left the resolution up to a jury.

Landgrave v. ForTec Medical, Inc., W.D. Texas, No. 1-20-cv-968, January 25, 2022.

This issue is likely to continue for employers with remote employees. It's possible the U.S. Department of Labor's Wage and Hour Division might provide some guidance, but in the meantime, the courts will step in.

Key to remember: Remote employees may well be eligible to take FMLA leave. Trying to figure it out has become a new challenge. Some employment attorneys are suggesting it might be safer to waive the 50/75 eligibility criterion and focus only on whether the employee has worked at least 12 months and worked the 1,250 hours criteria.

This article was written by Darlene M. Clabault, SHRM-CP, PHR, CLMS, of J. J. Keller & Associates, Inc. The content of these news items, in whole or in part, MAY NOT be copied into any other uses without consulting the originator of the content.


The J. J. Keller LEAVE MANAGER service is your business resource for tracking employee leave and ensuring compliance with the latest Federal and State FMLA and leave requirements.