Massachusetts: When are Remote Employees Eligible for FMLA and/or Paid Family and Medical Leave?

By Marylou Fabbo - Skoler Abbott P.C.

January 30, 2025

Private-sector employers that increasingly have been approving remote work for their employees have wondered whether they remain “Covered Employers” under the federal Family Medical Leave Act (FMLA) and whether their out-of-state employees are still eligible for FMLA leave.  After all, it’s not unusual to have employees spread across the country with only a few in each state.  And, what about coverage under state leave laws like the Massachusetts Paid Family and Medical Leave Act (MA PFML)?

FMLA: Covered Employers and Eligible Employees

Under the FMLA, private-sector employers who employ 50 or more employees in 20 or more workweeks in either the current or preceding calendar year, regardless of location of work, are “Covered Employers.”  It’s relatively easy to determine whether your employer meets that test. Employees who must be counted include those who work in the US, or any US territory or possession; whose name appears on payroll records (whether or not any compensation is received for the workweek); on paid or unpaid leave (including FMLA leave, leaves of absences, disciplinary suspension, etc.), as long as there is a reasonable expectation the employee will return to active employment; those who work for foreign firms operating in the US; and part-time, temporary, seasonal, and full-time employees. Whether an employer is covered is determined at the time the employee’s leave is set to begin.

Employees who telework are eligible for FMLA leave on the same basis as employees who report to any other worksite to perform their job.  However, determining whether an employee working remotely for a Covered Employer is eligible for FMLA leave is a bit more complicated.  Employees are eligible for FMLA leave when they have worked for a Covered Employer for at least 12 months and have worked at least 1,250 hours during the employer during the 12-month period immediately preceding the leave.  In addition, the employee must work at a location where the employer has at least 50 employees within 75 miles.  Whether the employee works at a location where the employer has 50 employees within a 75-mile radius is determined at the time the employee requests leave.

A Remote Employee’s Worksite

When an employer has employees working from their homes in different states, how does the employer determine whether the employee is working from a location where it has 50 employees within a 75-mile radius?   If there’s only one or two employees in any state, does that mean that the test is not met?  Well, that depends.

For FMLA eligibility purposes, FMLA regulations provide that the employee’s personal residence is not a worksite. Rather, when an employee works from home or otherwise teleworks, their worksite for FMLA eligibility purposes is the office to which they report or from which their assignments are made.   Thus, if 50 employees are employed within 75 miles from the employer’s worksite (the location to which the employee reports or from which their assignments are made), the employee meets that FMLA eligibility requirement. The count of employees within 75 miles of a worksite includes all employees whose worksite is within that area, including employees who telework and report to or receive assignments from that worksite.

MA PFML

MA PFML coverage for remote workers is determined differently.  MA PFML applies to Massachusetts Employers and Covered Business Entities.  An employee who works for either is MA PFML covered if the employee’s service performed is localized in Massachusetts. Service is deemed to be localized within Massachusetts if the service is either performed entirely within Massachusetts or if the service is performed both within and outside of Massachusetts, and the service performed outside Massachusetts is incidental to the individual’s service within Massachusetts.

If the employee’s service is not localized in any state, but some part of the service is performed in Massachusetts,  one of two factors also must be met before an employee is entitled to MA PFML coverage:  First, the individual’s base of operations must be in Massachusetts or, if there is no base of operations, then the place from which the employee’s service is directed or controlled is in Massachusetts.  Second, the employee’s base of operations or place from which such service is directed or controlled is not in any state in which some part of the service is performed, but the individual’s residence is in Massachusetts.  The bottom line: if you have a remote other employee who at any time works in  Massachusetts, has a base in Massachusetts, reports to Massachusetts, or lives in Massachusetts, you need to take a closer look at the employee’s eligibility.

Remote work presents many leave-related challenges for employers.  Most employers are interested in providing all legally-required leaves, but sometimes employers do not realize that a remote employee may not be eligible for certain leaves. On the flipside, employers need to keep apprised of other state’s leave laws when employing remote workers.  Employers who need guidance on applicable leave-related leave for remote employees should contact their employment counsel for guidance.

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