A funny thing happened as a result of the COVID-19 pandemic. Employers everywhere sent their employees home to work, many of whom will work forever more out of their home or remote worksite, never to see the Company headquarters again.
Coming out of the pandemic, some employers have drastically scaled back their brick-and-mortar headquarters. Others have ditched the company HQ, replacing it with a modest store front or even a Post Office Box. [All you Gen Z peeps: if you are wondering what a “Post Office box” is, ask your parents!]
As remote work cements itself into the fabric of the 21st Century workplace, it’s wreaking havoc on how an FMLA-covered employer determines whether its remote employees are eligible for FMLA leave.
Why, you ask?
Consider the definition of an eligible employee. Under the FMLA, an employee is eligible for FMLA leave if they have worked 12 months and 1250 hours prior to FMLA leave. These two, of course, are relatively easy to determine. However, the employee must also work at a worksite with 50 employees who are located within 75 (surface) miles of each other.
Of course, neither Congress nor the DOL contemplated that in year 2020, we’d suffer through a global pandemic that resulted in remote workers everywhere but the local brick-and-mortar office. No doubt, the regulations simply have not kept up with the realities of today’s workplace.
Here’s Your Conundrum
Let’s assume you have an employee, Vanessa, a surgical laser technician for your mobile surgical services company.
Although Vanessa was hired through your Ohio headquarters, she lived and primarily worked in Texas (occasionally her work required her to travel to other states, but not Ohio). To be clear, Vanessa has never stepped foot in the Ohio headquarters. Vanessa’s supervisor also was a remote employee working from Texas, and he reported to a Chicago-based supervisor, who in turn reported to another in Ohio.
Are you tired yet? As a reminder, Vanessa (Texas) —> boss (Texas) —> boss’ boss (Illinois) —> boss’ boss’ boss (Ohio HQ)
Vanessa’s supervisor managed the Texas region, oversaw logistics for the region, paired surgical techs with assignments, and handled Vanessa’s requests for time off. According to the court’s characterization of the facts, Plaintiff’s supervisor “spoke, text messaged, and emailed with technicians about their cases.” Though the employer claimed that the supervisor evaluated her performance and had authority to discipline her, Vanessa disputed this fact.
As to the crux of the issue here, Vanessa sought FMLA to care for her mother after surgery in Mexico. Not surprisingly, the supervisor told her by text message that she was ineligible for FMLA leave, stating that “there has to be a certain amount (sic) of employees working within 75 miles. None of us qualify down here.”
As the story goes, her employment ended while she was with her mother in Mexico, and Vanessa sued.
The Court Ruling on Vanessa’s FMLA Claims
To be eligible for FMLA leave, Vanessa has to show that she’s employed at a worksite where 50 employees are located within 75 miles.
Since Vanessa had no fixed worksite, the FMLA regulations tell us that her worksite (for purposes of the 50/75 rule) can be one of three locations: 1) the site to which Vanessa is assigned as her home base; 2) the site from which her work is assigned; or 3) the site to which she reports.
The employer’s Ohio HQ was the only worksite in which the company had 50 employees in a 75-mile area. So, if Vanessa can’t show she somehow feeds into that Ohio HQ, she’s out of luck on her FMLA claims.
In its analysis, the court gave its take on Vanessa’s worksite:
- Home Base: The court effectively threw up its hands as to whether the Ohio HQ was Vanessa’s home base. Notably, the court used the Worker Adjustment and Retraining Notification Act (“WARN”) as a guide, finding that the employee’s home base “must at a minimum be a location at which the employee is physically present at some point during a typical business trip” and “refers not to the physical base of the employer’s operations . . . but rather to the physical base of the employee.” Since Vanessa never stepped foot in Ohio, she could not credibly argue that Ohio was her home base.
- Assignment of Work: The site that assigns the work arguably is an important factor. Here, it’s the site where the “source of the day-to-day instructions” is given to the employee . . . “where the people were who were ultimately responsible for creating and receiving the assignment information.” Vanessa and the employer differed on this very point. According to her employer, Vanessa’s supervisor assigned work from his home in Texas, and he directed cases to specific employees within the Texas region. However, Vanessa characterized her supervisor’s assignment of work as “clicking the mouse on his computer at his house and sending the instructions from [the Ohio HQ] to one technician or the other in his region.” Inexplicably, the court found persuasive that the Plaintiff’s supervisor appeared to have been a “mere conduit” between an assignment originating at headquarters in Ohio and Vanessa. [Wow, this seems like a stretch to me.]
- Reporting Worksite: The court also couldn’t safely determine Vanessa’s reporting worksite. The location to which an employee reports is determined based on the “location of the personnel who were primarily responsible for reviewing . . . reports and other information sent by the employee, in order to record tasks, assess employee performance, develop new sales strategies, and the like.” Oddly, Vanessa’s supervisor did not review reports from her. In fact, she sent reports only to Ohio and never sent anything to her supervisor. There also was no evidence to establish that her supervisor performed any evaluations or had the power to impact her employment status.
The court refused to dismiss Vanessa’s FMLA claims, finding it impossible to determine Vanessa’s worksite, and instead placing the decision in the hands of a jury which, of course, will have an even more difficult time than the judge trying to determine Vanessa’s actual worksite. Read the actual decision here: Landgrave v. Fortec.
Insights for Employers
With this (lack of) guidance in mind, how is an employer to navigate these remote worker waters?
You’ve got a range of options:
- Everyone is eligible. Well, kind of. Given the difficulty in applying the 50/75 rule, many employers have simply removed this element as an eligibility requirement, which naturally broadens FMLA eligibility for employees. Simply put, if you have worked 12 months and 1,250 hours, you’ve reached the FMLA promised land.
- Keep Climbing till you find a corporate worksite. Some employers, particularly those who use third-party administrators to administer their FMLA leave, keep searching up the chain until they are able to assign the employee to a corporate worksite. For instance, in Vanessa’s case, the employer would look up the corporate chain until it found the Ohio HQ to assign as her worksite. Like Option 1, this, too, will result in many employees like Vanessa being eligible for FMLA leave.
- Follow the Landgrave approach, but do a better job. If you don’t want to hand your employee an FMLA freebie, you’ve got some work to do. A critical factor in identifying the employee’s work site is determining the location from which the employee receives assignments and the location to which they report. In Vanessa’s case, it was not clear whether her supervisor actually assigned her meaningful work or reviewed her work. This is instructive. If we hope to tag the supervisor’s location as the employee’s “worksite,” then it’s critical that we show the supervisor is more than a “conduit” (a term coined by the Landgrave court). Rather, we need to show that the supervisor: a) plays a meaningful role in the assignment of work; and b) actually reviews the work.