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.

Is my understanding of the following exclusion correct?

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.

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.

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?


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

This is outlined in 29 USC 2611 (2)(B)(ii):

(1) Commerce
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.

(2) Eligible employee
  (A) In general The term “eligible employee” means an employee who has been employed—
     (i) for at least 12 months by the employer with respect to whom leave is requested under section 2612 of this title; and
     (ii) for at least 1,250 hours of service with such employer during the previous 12-month period.
(B) Exclusions The term “eligible employee” does not include—
     (i) any Federal officer or employee covered under subchapter V of chapter 63 of title 5; or
     (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.

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.

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.

  • 1
    How about this paragraph -> FMLA regulation 825.111, paragraph (2) applies to remote and other off-site workers. The regulation states: "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." Feb 7 '19 at 19:17
  • Here's the url where I got paragraph above-> shrm.org/resourcesandtools/tools-and-samples/hr-qa/pages/… Feb 7 '19 at 19:19
  • 1
    @user2410556 You would have to apply that regulation to your personal facts. Which office do you report to? How many people report to that worksite? If you think you qualify, send HR a letter citing chapter and verse of the statute and the regulation and explaining why you think that it applies.
    – ohwilleke
    Feb 7 '19 at 20:26
  • @user2410556 I'm not sure that it would apply, but as ohwilleke said, you would have to apply your personal circumstances to that and make a case to your employer. If you don't get any reprieve from your employer, you can elevate your claim to the Department of Labor and open a case against them, but do note the 2 year limit to raising the allegation.
    – Ron Beyer
    Feb 8 '19 at 1:13
  • Appreciate all the feedback. I may need to clarify a few things in my original post. The company that issues my w2 does not have a physical office location in the state where I reside. They claim the client's office to be the office location. So that is one further question, does the company that issues my w2 require a physical office separate from the client's office. I will first try the friendly discussion approach with HR around the 50 employee exclusion. Does this exclusion really apply when my position can be temporarily filled from anywhere in the US? Feb 8 '19 at 13:17

Your Answer

By clicking “Post Your Answer”, you agree to our terms of service, privacy policy and cookie policy

Not the answer you're looking for? Browse other questions tagged or ask your own question.