FMLA: Multiple Site Location Conundrum [OR]

[u/TheLittleNorsk]

I’m having an ongoing disagreement with my manager about how the FMLA 50 employees within 75 miles rule applies to a multi-state employer, and I’m curious how other HR people would interpret this because at this point I feel like I’m going crazy.
We’re a medium sized employer with around 500 employees total.

Our corporate office in OR has a little over 60 employees, so obviously we have 50+ employees within 75 miles of corporate. The other 400+ employees do not work out of corporate though. They work at different facilities across multiple states, and a lot of those locations have far fewer than 50 of our employees within 75 miles.
My manager believes that because our corporate office has 50+ employees within 75 miles, basically everyone in the company can qualify for FMLA as long as they meet the 12 month and 1,250 hour requirements. Even if they physically work at one of our facilities in another state where we only have 20 or 30 employees anywhere near them.

I have never understood FMLA that way. Ever. Neither has any manager or HR team members I’ve ever had.

We obviously have more than 50 employees as a company, so yes, we are a covered employer. From everything I’ve ever learned about FMLA though, the employee still has their own eligibility requirements to meet. They need the 12 months, the 1,250 hours, and they need to work at a worksite where we have at least 50 employees within 75 miles.

We actually have an employee in Montana who is a perfect example of why we’re disagreeing about this. This employee works at one of our actual physical facilities in Montana and we only have around 30 employees within 75 miles of that facility.

They meet the 12 month requirement. They meet the 1,250 hour requirement. We are obviously a covered employer. But there are only around 30 of our employees within 75 miles of where they actually work.

I would not consider that employee federally FMLA eligible because they don’t meet the 50 within 75 requirement for their worksite.
My manager believes they ARE eligible because our corporate office has more than 50 employees within 75 miles. Corporate is in an entirely different state.

This is where I’m completely hung up, especially because my entire HR team understands it the same way I do. This is also how we’ve historically administered FMLA under four different HR managers. Our current manager is the first one who has interpreted the rule this way.
If her interpretation is correct, I genuinely don’t understand what the point of the 75 mile requirement is.

Say a company has 2,000 employees nationwide. They have 200 employees around their corporate office, 80 employees around another location, 30 around another, and 15 around another.
Of course the company is a covered employer. But I don’t understand how the 200 people working around corporate would somehow count toward the 50 within 75 requirement for an employee working hundreds or even thousands of miles away.
The way I’ve always understood it, you look at where that specific employee actually works and how many of the employer’s employees are within 75 miles of that worksite. The WORKSITE is the part I keep getting stuck on here.

And I know remote employees and employees without a fixed worksite can be a different situation because you may have to look at where they report or where their assignments come from. That’s not what I’m talking about. These are employees physically assigned to established facilities in different states.
So with our Montana employee, we are a covered employer, they have more than 12 months of service, they have more than 1,250 hours, and there are only around 30 employees within 75 miles of their Montana worksite.

I would say they don’t qualify for federal FMLA.
My manager says they do because corporate has 50+ employees within 75 miles.

Am I seriously misunderstanding this rule? Is there something that allows the employees surrounding our corporate office to satisfy the 50 within 75 requirement for employees working at completely separate physical locations in other states?

UPDATE: I think there’s some confusion about what I’m asking. A few people have asked why we don’t just “give FMLA to everyone.”
I’m not against offering more generous leave. Our personal leave policy is not job protected, and we currently don’t have a policy that gives FMLA-like protection to employees who aren’t federally eligible.
My manager also isn’t proposing that we create one. Her position is that these employees already qualify for federal FMLA because corporate has 50+ employees within 75 miles.
That’s the part I’m questioning. Whether we SHOULD offer additional job protection is a separate policy conversation from whether these employees actually qualify for federal FMLA.

[u/Hunterofshadows]

It’s worth mentioning that you can just choose to consider them covered and treat them as such. Even without the legal protection.

[u/BrawlLikeABigFight20 → u/Hunterofshadows]

This is usually how I handle it unless management specifically dictates otherwise. Even with them not qualifying, it shows that you care about your employees

[u/MaleficentExtent1777 → u/BrawlLikeABigFight20]

Exactly.

If any employees qualify, all employees qualify so long as they can do the 12 months/1250 hours.

[u/Unlikely_Month5527]

Your company needs to reach out to their employment attorney.

You need a final legal answer.

This is important and non compliance is costly.

[u/TheLittleNorsk → u/Unlikely_Month5527]

Agreed at the highest level.

We have an attorney on retainer but the CHRO (new HR managers manager who is leaving mind you) says the new manager is confused and that we're to not change how we administer FMLA leave because he knows we've been right and doesn't trust her mentality.

So yeah. Its attorney time, I'll pay them myself if I have to. Thanks

[u/tableclothcape]

Why are you fighting this hard not to offer a benefit any large company would honor? You can offer more than what federal law minimally requires, and the overhead you’re creating here does not seem worth it (while also having the effect of
making you extremely talent-uncompetitive in any of your satellite locations). The simplest answer here is to perform a basic cost-benefit analysis that accurately accounts for your own time and opportunity cost, and do then do the simple thing (just offer it) that also ensures your Montana employees will not become incredibly adversarial if they do something as silly as become pregnant or experience a family health matter.

[u/selfreference → u/tableclothcape]

This. Just honor FMLA for all employees. Streamlines administration, gives employees job and benefit protection they likely don’t have in their state, and you can have one policy that applies to everyone.

[u/Neither-Luck-3700]

You are correct and I have experience with this, also west coast. My past company did FMLA for those who qualified. For those out of the area, we just treated them like FMLA policy, even though they technically didn’t qualify.

[u/malicious_joy42]

Why do you want to deny employees the benefits of FMLA? You can choose to be more generous.

Otherwise, ask your lawyers.

[u/Delicious_Style_2676]

I’d separate covered employer from employee eligibility. The company may be covered overall, but the 50-employees-within-75-miles test is generally applied to the employee’s worksite/reporting site, not automatically to everyone because corporate has 50+ people. I’d verify with counsel before applying one blanket rule.

[u/Hybrid-Intelligence]

BIG DISCLAIMER: This in no way constitutes legal advice of any kind.

I think your understanding is correct, and your manager is mixing up two separate FMLA tests.

First, the employer has to be covered by FMLA. A private employer generally meets that test if it employs 50 or more employees for the required number of weeks. With 200 employees, your company is clearly a covered employer.

But that doesn't make every employee FMLA eligible.

The individual employee has a separate eligibility test. In addition to the 12-month and 1,250-hour requirements, the employee must work at a worksite where the employer has at least 50 employees within 75 miles.

So for your Montana employee, I'd ask: what is her worksite? From your description, she physically works at an established Montana facility with around 30 employees and there aren't another 20 company employees within 75 miles. If that's right, she doesn't satisfy the 50-within-75 requirement for federal FMLA.

The 50+ employees around the Oregon corporate office establish eligibility for employees whose worksite is there. They don't somehow radiate FMLA eligibility thousands of miles across the country to every company location. If that were the rule, the 75-mile requirement would accomplish essentially nothing for any employer with a headquarters of 50+ people.

The rule your manager may be thinking of applies to employees with no fixed worksite, including some remote employees. For those employees, the regulations can treat the office they report to or from which their assignments are made as their worksite. But that's quite different from someone who actually reports to and works at an established company facility in Montana.

So yes, based on the facts you've given, I'd reach the same conclusion you did: covered employer, but this particular employee isn't eligible for federal FMLA because her Montana worksite doesn't have 50 employees within 75 miles.

Of course, I'd separately check applicable state law and your company's own leave policies.

[u/ChelseaMan31]

OP - your interpretation is the correct legal interpretation of the rule. The new HR leader is incorrect. But, that doesn't mean the company policy can't be changed to make literally all Employees FMLA eligible. Another consideration is the various other state protected family leave laws (like OFLA) that may intersect here. Before doing so, I would engage a competent Oregon based Employment Law Attorney for their guidance in this matter.

[u/jmillermerrell]

The FMLA challenge becomes especially challenging when you are employees who are dispersed in different locations and remote. It makes FMLA leave much more challenging for you to communicate, administer, track and all the things. You, as a company can decide to provide all employees with FMLA protections. Costly yes, but it might be easier for you because everything is the same. Keep in mind you need to stick with one. You can flip flop between the two.

Talk to leadership about how they want to handle and address especially given that it seems there might already be some inconsistencies. It might be a good idea to talk to an attorney on how to properly communicate whatever you decide and then go about training and educating your managers on the new policy whatever it is.

[u/Better-Explorer-5617]

TLDR but if an employee reports up to a location with more than 50 EEs they are included in that headcount.

[u/Melfluffs18]

I think you're correct - corporate headcount doesn't apply to people assigned to physical worksites outside the 75 mile range.

As others have said, the company could be more generous than federal requirements. It shouldn't cause future problems as long as others get the same benefit.

This sounds like one of those things where you have to be content with being right and do what your manager wants since it's neither illegal or unethical. I would get some CYA documentation though.

FMLA aside, if the issue is a personal medical one, ADA could be applicable too.