What does it all mean and who does it mean it for? An Eligible Employee under the FMLA, Part 4.

Last time we talked about the 50 employee within 75 mile test for eligibility under the FMLA.  We are going to talk about it again.  This time we are going to discuss how you determine if the employee who is requesting leave actually works within 75 miles of 49 other employees.  Let’s start with how we determine what the worksite is.  Some of this is just plain common sense and some of it probably does not apply to you, but the Department of Labor took the time to write these Regulations so we should probably at least take the time to read them.

Let’s start with the general rule:

(a) Generally, a worksite can refer to either a single location or a group of contiguous locations. Structures which form a campus or industrial park, or separate facilities in proximity with one another, may be considered a single site of employment. On the other hand, there may be several single sites of employment within a single building, such as an office building, if separate employers conduct activities within the building. For example, an office building with 50 different businesses as tenants will contain 50 sites of employment. The offices of each employer will be considered separate sites of employment for purposes of FMLA. 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.

29 CFR §825.111(a).

So that makes sense, right?  A big building in New York or Chicago that has a bunch of tenants can be a worksite for all of those tenants.  It is really the last sentence of that section that matters, right?  “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.”  So what if we have a big campus with a bunch of buildings on it?  Well, that is a single site of employment too:

(1) Separate buildings or areas which are not directly connected or in immediate proximity are a single worksite if they are in reasonable geographic proximity, are used for the same purpose, and share the same staff and equipment. For example, if an employer manages a number of warehouses in a metropolitan area but regularly shifts or rotates the same employees from one building to another, the multiple warehouses would be a single worksite.

29 CFR §825.111(a)(1).

And that makes sense too, right?  But what if the employee does not have a fixed site of employment?  What if it is a salesperson or a truck driver?  We have a Regulation for that too:

(2) For employees with no fixed worksite, e.g., construction workers, transportation workers (e.g., truck drivers, seamen, pilots), salespersons, etc., the worksite is the site to which they are assigned as their home base, from which their work is assigned, or to which they report. For example, if a construction company headquartered in New Jersey opened a construction site in Ohio, and set up a mobile trailer on the construction site as the company’s on-site office, the construction site in Ohio would be the worksite for any employees hired locally who report to the mobile trailer/company office daily for work assignments, etc. If that construction company also sent personnel such as job superintendents, foremen, engineers, an office manager, etc., from New Jersey to the job site in Ohio, those workers sent from New Jersey continue to have the headquarters in New Jersey as their worksite. The workers who have New Jersey as their worksite would not be counted in determining eligibility of employees whose home base is the Ohio worksite, but would be counted in determining eligibility of employees whose home base is New Jersey. For transportation employees, their worksite is the terminal to which they are assigned, report for work, depart, and return after completion of a work assignment. For example, an airline pilot may work for an airline with headquarters in New York, but the pilot regularly reports for duty and originates or begins flights from the company’s facilities located in an airport in Chicago and returns to Chicago at the completion of one or more flights to go off duty. The pilot’s worksite is the facility in Chicago. 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.

29 CFR §825.111(a)(2).

Now that section has a lot of stuff in it, so let’s break it down a bit.  First, if the employee does not have a fixed site, for example our truck driver, then their site of employment is “the site to which they are assigned as their home base, from which their work is assigned, or to which they report.”  Not necessarily the company headquarters then.

What about our salesperson?  Is home their worksite?  No, it is not.  According to this Regulation, “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.”  And the same is true for people who work from home.

With all of that in mind, how do we measure the 75 miles?  As the crow flies?  Nope, not unless you are a crow (or you can’t drive to work).  It is highway miles, when you drive.

(b) The 75-mile distance is measured by surface miles, using surface transportation over public streets, roads, highways and waterways, by the shortest route from the facility where the employee needing leave is employed. Absent available surface transportation between worksites, the distance is measured by using the most frequently utilized mode of transportation (e.g., airline miles).

29 CFR §825.111(b).

And the determination is made based on the number of employees that you have on the payroll, not by the number of employees that happen to be at work on the day the employee asks for leave.

(c) The determination of how many employees are employed within 75 miles of the worksite of an employee is based on the number of employees maintained on the payroll. Employees of educational institutions who are employed permanently or who are under contract are maintained on the payroll during any portion of the year when school is not in session.  See §825.105(c).

29 CFR §825.111(c).

And one last thing.  What about temps?  You know, co-employees?  What is their worksite?  Well, in that case the worksite is the primary employer’s site, not the secondary employer’s, but the employee counts for both employers for determining if they have 50 employees.

(3) For purposes of determining that employee’s eligibility, when an employee is jointly employed by two or more employers (see §825.106), the employee’s worksite is the primary employer’s office from which the employee is assigned or reports, unless the employee has physically worked for at least one year at a facility of a secondary employer, in which case the employee’s worksite is that location. The employee is also counted by the secondary employer to determine eligibility for the secondary employer’s full-time or permanent employees.

29 CFR §825.111(a)(3).

Well, that is enough of that.  Next time, why an employee can take a leave.