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HR Tip: Remote employees and federal and state leave law

One of the eligibility requirements for FMLA is that the employee must work at a worksite where at least 50 employees are employed by the company within a 75-mile radius. How does the telecommuter fit in? The FMLA regulations, Section 825.111, paragraph (2), address the issue:

"An employee's personal residence is not a worksite in the case of employees, such as salespersons, who travel a sales territory and who generally leave to work and return from work to their personal residence, or employees who work at home, as under the concept of flexiplace or telecommuting. Rather, their worksite is the office to which they report and from which assignments are made."

Thus, if the remote worker's reporting office employs 50 or more employees within a 75-mile radius, and if he or she has worked for the company for at least 12 months and has worked at least 1250 hours in the last 12 months, the employee is eligible for FMLA leave.

But beyond the FMLA, there may be state laws that apply. Some employees have seen remote work as an opportunity to explore living in different parts of the country and may change state residences several times during the year. It's critical that you require employees to notify you whenever they will be working from a different jurisdiction, as you'll need to determine whether they are entitled to a statutory leave of absence under the laws of the state/city.

California, Connecticut, Hawaii, Massachusetts, New Jersey, New York, Rhode Island, Washington, and Washington, DC provide paid family leave and other states have non-paid family leave. A recent "Dear Littler" letter illustrated the state law quandary and demonstrated the complexity and possible financial obligations of employers to fund the benefits. For example, if an employee moves to Massachusetts and falls ill after earning more than $5,400 there, they may be covered, and you may be required to withhold pay from his paycheck to fund this benefit.