Employers with over 50 employees regularly address employees’ requests for leave under the FMLA. When the FMLA was originally enacted in 1993, the workplace looked a bit different than it does now. Most employees went to a main worksite and job applicants came to a location to apply for employment. In today’s work environment, many employees work remotely, and most job applications are submitted online. Yet, employers must grapple with the FMLA’s requirements within the confines of the new, often remote, modern workforce.
FMLA Eligibility
To be eligible for FMLA leave, an employee must be employed at a worksite where 50 or more employees work within 75 miles of that worksite. Remote employees may no longer be located within 75 miles of their worksite.
In February, however, the U.S. Department of Labor (DOL) issued a new Field Assistance Bulletin addressing how to establish an employee’s work location in determining FMLA eligibility given today’s modern workforce.
The DOL confirmed that a remote employee’s worksite for eligibility purposes is the office to which they report or from which their assignments are made, not the location where they may be physically located (i.e., their home). Remote employees may remain protected by the FMLA regardless of where they perform their work. Employers should take this into consideration when determining an employee’s FMLA eligibility.
FMLA Notice Display Requirements
In addition, the FMLA requires employers to display a poster summarizing the main elements of the FMLA in a conspicuous location where employees and job applicants would be able to see it. In the past, many employers chose to display a poster in a breakroom in plain view for all employees.
With the remote work and hybrid schedules of today’s modern workforce, not all employees or job applicants may see such a poster. So, the question arises as to how an employer can meet the general FMLA notice requirements.
Employers must display a physical poster at a worksite, on an internal website where remote and/or hybrid employees have access, and online where job applicants may apply for a position. In addition, the poster must also be displayed in any area where an applicant will be onsite for a job interview. If an applicant wouldn’t have security access to an area where the poster is displayed, the employer should also display the poster in a general area where a job applicant may be.
The DOL updated its “Your Employee Rights Under the Family and Medical Leave Act” poster in April 2023, and employers should be sure to use the updated version.
Rebecca Kopp Levine is a partner of Porter Wright in Cleveland, Ohio. She can be reached at rlevine@porterwright.com.
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