FMLA Developments Regarding Telework and Retaliation Claims You Should Know About

27 February 2023 Labor & Employment Law Perspectives Blog
Author(s): Jeffrey S. Kopp

As our readers might expect, new guidance from the Department of Labor and recent case law continue to shape how human resources professionals should be thinking about administering leave under the Family and Medical Leave Act (FMLA).

Regarding teleworking and remote work, the Department of Labor (DOL) recently issued a Field Assistance Bulletin (FAB No. 2023-1) to its Wage and Hour Division field staff regarding how to apply FMLA eligibility rules when employees telework or work away from the employer’s facility. This guidance is particularly appropriate given the increase in remote work and telecommuting during and after the pandemic.

In its Bulletin, the DOL noted that, to be eligible for FMLA leave, an employee must be employed at a worksite where 50 or more employees are employed by the employer within 75 miles of that worksite. However, an employee's personal residence is not considered a worksite. When an employee works from home or otherwise teleworks, their worksite for FMLA eligibility purposes is the office to which they report or from which their assignments are made. Thus, if 50 employees are employed within 75 miles from the employee’s worksite (again, that location to which the employee reports or from which their assignments are made), the employee meets the FMLA eligibility requirement. The count of employees within 75 miles of a worksite includes all employees whose worksite is within that area, including employees who telework and report to or receive assignments from that same worksite.

The takeaway is that, with increased employee flexibility of remote working, the protections afforded under the FMLA still apply.    

In another development, a recent decision from a federal appeals court confirmed that an employee may assert an FMLA retaliation claim — even though the employee may not otherwise be eligible for FMLA — because the employee has not either accumulated at least 1,250 hours of service with that employer or worked for the employer for at least 12 months.

In that case, Milman v. Fieger & Fieger, P.C., the U.S. Court of Appeals for the Sixth Circuit (which covers Michigan, Ohio, Kentucky, and Tennessee) joined other federal circuits in reasoning that an employee who requests a leave of absence, regardless of whether the employee is entitled to the requested leave, exercises a protected right under the FMLA.

The issue, according to the court, is not whether the employee actually took the leave requested, but whether the FMLA protects the right of an employee to inquire about and request leave, even if it turns out that the employee is not entitled to such leave. The court answered in the affirmative, holding that the inquiry itself is a right protected by the statute. The takeaway from this case is that an employer may not retaliate against an employee who inquires about a need for leave that might be FMLA protected, even if the employee does not expressly mention the FMLA or otherwise is even eligible to use FMLA leave. 

In light of these developments, employers are well-advised to consider eligibility for FMLA for remotely working employees under the standards referenced in FAB 2023-1, and also to consider how an adverse employment decision, such as a termination, could relate to an employee’s inquiry about a need for leave. This underscores that the FMLA broadly protects employees from retaliation. Please feel free to reach out to one of our employment law attorneys if you have questions about these or other FMLA issues.

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