Are Remote Employees Eligible for FMLA Leave?

Remote employees are eligible for FMLA leave on the same terms as any other employee. The Department of Labor confirmed in a 2023 guidance bulletin that teleworkers qualify for the Family and Medical Leave Act on the same basis as workers who report to a physical office.¹ The wrinkle for remote employees is that your home is never treated as your worksite for eligibility purposes. What matters is the office you report to and how many coworkers your employer has near it.

How Your Worksite Is Determined When You Work From Home

FMLA eligibility requires you to work at a location where your employer has at least 50 employees within 75 miles. For a remote worker, the regulation is explicit: your personal residence is not a worksite. Your worksite is the office to which you report or from which your assignments are made.²

So a developer who lives in rural Montana but receives all her assignments from a Chicago headquarters has Chicago as her worksite. If Chicago and the surrounding 75-mile area employ at least 50 of her employer’s people, she clears this part of the test.

The 50-employee count includes everyone assigned to that worksite, not just the people who physically show up. Other remote employees who report to the same office count too. The count is taken at the time you give notice of your need for leave; headcounts at other points in the year don’t matter.³

When You Report to More Than One Office

Some remote workers get assignments from multiple offices or answer to supervisors in different locations. The regulation doesn’t spell out how to handle split reporting, but the DOL’s guidance points to the office from which assignments are made as the controlling site.¹ If your work flows primarily from one place, that place is your worksite.

For jointly employed workers assigned by a staffing agency, the worksite is the primary employer’s office from which you’re assigned, unless you’ve physically worked at a secondary employer’s facility for at least a year.³

Remote Workers at Companies With Small Offices

If your assigned office and its 75-mile radius have fewer than 50 employees, you don’t meet this requirement no matter how long you’ve worked there. The total size of the company across all locations is irrelevant to the test. A company with 500 employees spread across 15 small offices might not have a single location that clears the threshold. This is the most common way remote employees fall out of FMLA coverage.

The Other Two Eligibility Requirements

Beyond the worksite rule, you have to meet two more requirements, and all three must be satisfied when your leave begins.

You need 12 months of employment with the employer. Those months don’t have to be consecutive, but periods before a break in service of seven years or more generally don’t count. The main exception is a break for military service under USERRA or one covered by a written agreement to rehire you.⁴

You also need 1,250 hours of actual work during the 12 months immediately before your leave starts. Paid time off, holidays, and other non-work hours don’t count.⁵

One more threshold sits above all this: the employer itself has to be covered. Private-sector employers are covered if they employed 50 or more workers for at least 20 workweeks in the current or preceding calendar year. Public agencies and public or private schools are covered regardless of headcount.⁵

What You Can Take FMLA Leave For

An eligible employee gets up to 12 workweeks of unpaid, job-protected leave in a 12-month period for any of these reasons:⁶

The birth of your child and bonding time during the first year after birth.
Placement of a child with you for adoption or foster care and bonding within the first year.⁷
Caring for your spouse, child, or parent with a serious health condition.
Your own serious health condition that prevents you from performing your job’s essential functions.
Certain urgent needs arising from a spouse’s, child’s, or parent’s covered active duty or call to active duty.

A separate, broader entitlement runs for military caregiver leave: up to 26 workweeks in a single 12-month period if you’re the spouse, child, parent, or next of kin of a covered servicemember with a serious injury or illness. That 12-month clock starts the first day you take this leave, and any unused portion is forfeited when the window closes.⁸

Returning to Your Job After Leave

When you return, your employer must restore you to the same position or one that is virtually identical in pay, benefits, working conditions, duties, responsibilities, and authority. You get any unconditional pay increases that happened while you were out, like cost-of-living adjustments. Benefits resume at the same level, and you can’t be required to requalify for coverage you had before leave.⁹

One detail matters especially for remote workers. Reinstatement must be to the same or a geographically proximate worksite, meaning one that doesn’t involve a significant increase in commuting time or distance. If you worked from home before your leave, being told to show up at the office five days a week afterward could violate this provision. You’re also entitled to the same shift and an equivalent work schedule.⁹

One narrow exception applies. If you’re a salaried employee among your employer’s highest-paid 10% within 75 miles of your worksite, the employer can deny reinstatement (not the leave itself) if restoring you would cause “substantial and grievous economic injury” to business operations. The employer must notify you in writing at the time you request leave that you qualify as a key employee and explain the possible consequences. An employer that skips this notice loses the right to deny restoration.¹⁰

Interference and Retaliation Protections

Federal regulations prohibit employers from interfering with your FMLA rights or retaliating against you for using them. Interference goes beyond denying a leave request. It includes discouraging you from taking leave, manipulating schedules to push you below 1,250 hours, or shifting employees between worksites to keep locations under the 50-employee mark.¹¹

Retaliation means your employer can’t use the fact that you took FMLA leave as a negative factor in hiring, promotions, or discipline. Protected absences also can’t be counted against you under a no-fault attendance policy. For remote workers, this is particularly relevant. Being passed over for promotion, excluded from projects, or shifted to less desirable work after taking protected leave can all qualify.¹¹

Remedies for violations include lost wages and benefits with interest, an equal amount in liquidated damages unless the employer proves good faith, reinstatement or promotion, and reasonable attorney’s fees.¹²

State Paid Leave Laws May Also Cover You

FMLA is a federal floor, not a ceiling. A growing number of states have their own paid family and medical leave programs that provide wage replacement while you’re out. Nothing in the FMLA prevents you from receiving protections under other laws, and you have the right to benefit from every law that applies to your situation.⁵

For remote employees, the question is which state’s law governs. State paid leave programs typically apply based on where you physically perform your work, not where the company is headquartered. If you live and work in a state with a paid family leave program, you may be covered by that state’s benefits even though your employer is based elsewhere. Your employer may need to track where remote employees actually work to comply with multiple state programs. In most states offering paid family leave, benefits run concurrently with FMLA, so you get paid during the same weeks your federal job protection is active rather than stacking extra weeks on top.

1
U.S. Department of Labor. Field Assistance Bulletin No. 2023-1
2
eCFR. 29 CFR 825.111 – Determining Whether 50 Employees Are Employed Within 75 Miles
3
eCFR. 29 CFR 825.111 – Determining Whether 50 Employees Are Employed Within 75 Miles
4
eCFR. 29 CFR 825.110 – Eligible Employee
5
U.S. Department of Labor. Fact Sheet #28: The Family and Medical Leave Act
6
U.S. Department of Labor. Family and Medical Leave Act
7
U.S. Department of Labor. Fact Sheet #28Q: Taking Leave from Work for the Birth, Placement, and Bonding with a Child Under the FMLA
8
eCFR. 29 CFR 825.127 – Leave to Care for a Covered Servicemember with a Serious Injury or Illness
9
eCFR. 29 CFR 825.215 – Equivalent Position
10
eCFR. 29 CFR 825.219 – Rights of a Key Employee
11
eCFR. 29 CFR 825.220 – Protection for Employees Who Request Leave or Otherwise Assert FMLA Rights
12
Office of the Law Revision Counsel. 29 USC 2617 – Enforcement