The Family And Medical Leave Act

Fri, 04/28/23

The 30th Anniversary of the FMLA Brings Some Important Clarifications

• Wondering if the Family and Medical Leave Act (“FMLA”) applies to your remote workers?
• Not sure exactly what you should do when handling an FMLA request?
• Your questions are now answered with new information available on FMLA requirements.

            As a California employer, you may be focused on complying with the California Family Rights Act (“CFRA”), California’s version of the FMLA.  This is true because CFRA applies to smaller employers and is more generous (generally speaking) than the FMLA.  However, as described below, FMLA may be applicable to your non-California employees, and luckily now the Department of Labor (DOL) has issued enhanced guidance for employers.

            The FMLA applies to employers with 50 or more employees.  This includes all employees world-wide.  If the FMLA applies to your company, then your employees may take up to 12 weeks of job-protected time off if they qualify. 

Employee Qualification to use FMLA:

• Employed for at least 12 months (cumulative over prior 7 years);
  • Worked at least 1250 hours in 12 months preceding time off;
  • Work at a worksite with 50 or more employees within a 75 mile radius;
  • Time off is needed to:
    • care for their own serious health condition,
    • care for a family member with a serious health condition,
    • care for child after birth or placement, or
    • up to 26 weeks for qualifying exigencies arising out of the fact that the employee’s spouse, son, daughter, or parent is on covered active duty or call to covered active duty status as a member of the National Guard, Reserves, or Regular Armed Forces.

I.          New DOL Guidelines for Remote Workers: FMLA Can Apply to Single or Small Groups of Employees Working in Other States

            If you have 50 or more employees total, even a single employee working in another state may be covered by FMLA rights if they report (meaning submit work) to an office that has 50 or more employees within a 75 mile radius.

            The Department of Labor recently announced that a remote employee’s home office may not be considered their “worksite.”  Instead, the “worksite” for purposes of determining if there are at least 50 employees in a 75 mile radius will be the office to which the employee reports to or from which their assignments are made.

            What does this mean?  You may have assumed that remote employees are not subject to CFRA protections because they are not located in California (which is true) and not entitled to FMLA protections because they do not work within a 75 mile radius of 50 or more employees.  We encourage our clients to reassess whether their remote employees are covered by the FMLA and ensure that moving forward, the Human Resources team and management know to follow FMLA protocols for employees who may have such rights.

II.        FMLA Updated FAQs

            Also, as part of the 30th anniversary, the Department of Labor has provided enhanced information, useful guides, and forms on its website here https://www.dol.gov/agencies/whd/fmla.

            For example, the FAQ page describes the definition of “son or daughter” as a biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis who is either under 18 years of age or is 18 years of age or older and “incapable of self-care because of a mental or physical disability” at the time FMLA leave is to commence.

            The page goes on to drill down on the definition of “incapable of self-care”:

An individual will be considered “incapable of self-care” for FMLA leave purposes if he or she requires active assistance or supervision in three or more activities of daily living (ADLs) or instrumental activities of daily living (IADLs).

The FMLA regulations include the following as examples of “activities of daily living”:

• Caring appropriately for one’s grooming and hygiene
• Bathing
• Dressing
• Eating

The FMLA regulations provide the following examples of “instrumental activities of daily living”:

• Cooking
• Cleaning
• Shopping
• Taking public transportation
• Paying bills
• Maintaining a residence
• Using telephones and directories
• Using a post office

These lists of ADLs and IADLs are not exclusive and determinations of whether an individual is “incapable of self-care” may include consideration of additional activities such as needing assistance with medication management.

III.       Other Resources Available for FMLA Guidance

The Employer Guide is particularly useful, found here https://www.dol.gov/agencies/whd/fmla/employer-guide

The Field Operation Handbook, found here https://www.dol.gov/sites/dolgov/files/WHD/legacy/files/FOH_Ch39.pdf.

If you have any questions or need any additional information on this topic, please call Samantha Pungprakearti, Justin Hein, Kristin Mattiske-Nicholls, or Arif Virji at Carle, Mackie, Power & Ross LLP – (707) 526-4200.