Seriously? – Telecommuting FMLA for WFH! WTH?

Seriously? An FMLA Series, Episode 2

Telecommuting FMLA for WFH! WTH?


The meaning of ‘work place’ is changing faster than the landscape of social media. According to Forbes and WSJ, an estimated 30 million employees work from home some fraction of the time, with at least 10% of those never stepping foot in an “office”. The employee has more flexibility, spends less in commuting, and spends less on business attire. The employer has lower costs for office space, employees call out sick less often and return from disabilities sooner, and technology both allows employers to not skip a beat in the event of a catastrophe and provides opportunities for productivity management. So, what’s not to love about this growing phenomenon? FMLA! That’s what!

When you mix FMLA with WFH, as they say, it’s a hot mess!! There are 2 major issues, and with any good FMLA management topic, they each have lots of tiny little sub-issues festering within.

Big Issue #1: Determining employee headcount in order to know whether they are entitled to federal FMLA leave. “825.111(a)…An employee’s worksite under FMLA will ordinarily be the site the employee reports to or, if none, from which the employee’s work is assigned.” Oh, well, that clears it right up ~ NOT! For federal FMLA worksite determination, one of the best things you can do for your organization is get your org charts cleared up, so there are no ambiguities around where an employee reports into. The DOL does NOT want to see you shuffling WFH employees who report directly into Corporate and qualify for federal FMLA, but you have them randomly assigned to sites with fewer than 50 employees, so they are labeled as not eligible. If you have a corporate site of only 42 employees, but there are 6 sales people around the country and 17 call center reps working from their home, then just come to terms with it – you have 65 employees “within 75 miles” because those WFH folks are as good as sitting on your lap.

Little festering sub-issue #1: Determining which state FMLA laws are applicable. Unfortunately this is where the answer is the ever popular “It depends”. The fun little quote from the federal regs above does not apply. The majority of the states with FMLA Leave Laws direct that the employee must have a physical presence within the state. Specifically, that list is: CA, CT, DC, HI, IA, LA, MA, MN, MT, NJ, OH, RI, SC, TN, VT, and WI. Maine and Pennsylvania are the only two that directly indicate that work performed out of state is counted toward eligibility for in-state benefits. So, you don’t want to take all of your WFH employees in CA and assign them to the TX location, to avoid granting them the very generous CA leave benefits.

Little festering sub-issue #2: Determining headcount by state. Here is the good news…maybe….as I always say “It depends”. If the sub-issue above made you sob a bit, remember that just because the employee is eligible for federal FMLA because they report into corporate, does not mean they will also qualify for state FMLA. Let’s take DC, which I blogged on last week. The District of Columbia requires a minimum of 20 employees to be covered. If you have 200 employees at corporate, but only 3 of them are WFH from DC, then they will qualify for federal FMLA, but not DC FMLA, as there are only 3 physically performing work there. Your magic trick is making sure that you have a clear handle on each WFH employee’s federal qualifiers and separately, their state qualifiers.

Yes, Seriously! Stay tuned for Big Issue #2, coming to a blog near you — FMLA Management of Claims for Employees Who Are WFH.