human-resources
What is the reason behind the FMLA requirement of working at a location where employer has at least 50 employees?
<p>I currently work for a large company (>50 employees) that is denying my eligibility for FMLA because I reside in a state that has only 15 employees in that state. The company I work for does not have a physical office (I actually work from home) and claims the client site to be the office location. The client site actually has many locations across the US which would more than qualify me for FMLA. </p>

<p>Is my understanding of the following exclusion correct?</p>

<p>ii) any employee of an employer who is employed at a worksite at which such employer employs less than 50 employees if the total number of employees employed by that employer within 75 miles of that worksite is less than 50.</p>

<p>My assumption for this exclusion is to protect a small business that could be negatively impacted by one or more employees taking FMLA due to the difficulty of finding a temporary replacement within 75 miles of the office.</p>

<p>If the assumption above is correct, what if the position is able to be filled nation wide since it is a work from home position?</p>

<p>Unfortunately your employer is right. The rule says that in order for FMLA to apply to you, you must work <em>at a location with 50 or more employees within 75 miles</em>. Your client is not your employer, even if your employer considers it a place of business.</p>

<p>This is outlined in <a href="https://www.law.cornell.edu/uscode/text/29/2611" rel="nofollow noreferrer">29 USC 2611 (2)(B)(ii)</a>:</p>

<blockquote>
  <p><strong>(1) Commerce</strong><br/>
  The terms “commerce” and “industry or activity affecting commerce” mean any activity, business, or industry in commerce or in which a labor dispute would hinder or obstruct commerce or the free flow of commerce, and include “commerce” and any “industry affecting commerce”, as defined in paragraphs (1) and (3) of section 142 of this title.</p>
  
  <p><strong>(2) Eligible employee</strong><br/>
  &nbsp;&nbsp;<strong>(A) In general</strong> The term “eligible employee” means an employee who has been employed—<br/>
  &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;<strong>(i)</strong> for at least 12 months by the employer with respect to whom leave is requested under section 2612 of this title; and<br/>
  &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;<strong>(ii)</strong> for at least 1,250 hours of service with such employer during the previous 12-month period.<br/>
    <strong>(B) Exclusions</strong> The term “eligible employee” does not include—<br/>
  &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;<strong>(i)</strong> any Federal officer or employee covered under subchapter V of chapter 63 of title 5; or<br/>
  &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;<strong>(ii)</strong> any employee of an employer who is employed <strong>at a worksite at which such employer employs less than 50 employees</strong> if the total number of employees employed by that employer within 75 miles of that worksite is less than 50.</p>
</blockquote>

<p>So if you had 50 workers within 75 miles of you (regardless of state borders), then you would be eligible, unfortunately since you do not have that, you are not eligible for FMLA. The number of workers at the office that are not employed by your employer do not count.</p>

<p>You are right that the reason for the 50 employee rule is to lessen an undue burden on an employer without adequate resources to cover your absence, but you don't have a case since you are not defined as an "eligible employee" by law.</p>
