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Under the Family Medical Leave Act (FMLA), to be eligible for leave, an employee must be at a location where 50 or more employees are employed within 75 miles of that location.

Generally, the “worksite” analysis is fairly straightforward. The FMLA defines a worksite as 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.

What happens when an employer’s business crosses state lines?

However, what about employees with no fixed worksite, e.g., construction workers, transportation workers (such as truck drivers, seamen, pilots) and salespersons?

For such employees, the worksite is the site (1) to which they are assigned as their home base, (2) from which their work is assigned or (3) to which they report. For example, if a construction company headquartered in Missouri opened a construction site in Illinois, and set up a mobile trailer on the construction site as the company’s on-site office, the construction site in Illinois 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 Missouri to the job site in Illinois, those workers sent from Missouri continue to have the headquarters in Missouri as their worksite.

Is an employee’s personal residence a worksite under the FMLA?

Yet, it is also noteworthy that 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 flex-place or telecommuting. Rather, their worksite is the office to which they report and from where assignments are made.

This is important because federal courts have ruled that even though a sales representative worked in a city where the employer had fewer than 50 employees, that rep was still eligible for FMLA leave because he or she “worked” from a different location “from where their work is assigned, or to which they report.”

Thus, it is important to examine all employee worksites, especially those in a different geographical area from a company’s headquarters, when making a determination about eligibility under the FMLA.