Can You Count To 50 (Not Kidding)?
If you sell EPLI, can your insureds count to 50? With FMLA, the way an employer counts employees can make or break eligibility. Making mistakes here leads to legal headaches, penalties, and blindsided employees. Many employers unknowingly miscount remote or part–time employees, traveling workers, or seasonal hires, all while assuming the “50 within 75” rule is simpler than it really is. ePlace Solutions answers these questions and more.
What is the “50 Within 75” Rule?
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- Employees are eligible for federal FMLA leave if they work at a location that has at least 50 employees with 75 miles, have been employed for at least 12 months, and worked at least 1,250 hours in the 12 months immediately before the date their leave is to start.
Who’s Counted Toward the 50?
The 50-employee threshold is a headcount of employees who work in the United States and its territories.
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- Count all employees on payroll even if compensation wasn’t received, including full-time, part-time, seasonal, temps, owners (if on payroll), and employees on any type of leave or suspension.
- Coverage kicks in if an employer had 50 or more employees for at least 20 workweeks in either this calendar year or last calendar year (weeks need not be consecutive).
How do you Determine 75 Miles of the Employee’s Worksite?
Worksite refers to where the employee who needs leave reports or receives assignments – not their home address.
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- For remote and teleworking employees, the worksite is the office that manages or assigns their work – even if they live hundreds of miles away.
- As telework spreads, FMLA’s rules still hinge on an employee’s reporting site – not their home. The DOL has clarified home offices do not count as worksites. Employers must carefully map remote staff back to the hub that directs them, ensuring accurate counts for the 50 within 75 rule.
- For employees with no fixed worksite (e.g., sales reps, construction workers), their worksite is where they report, where their work is assigned, or the location assigned as their home base.
- For remote and teleworking employees, the worksite is the office that manages or assigns their work – even if they live hundreds of miles away.
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- 75 miles is measured using surface miles, using surface transportation or public streets, roads, highways, and waterways by the shortest route possible.
- Employees at worksites with less than 50 employees within 75 miles are not eligible for FMLA leave, even if the company has hundreds of employees elsewhere.
- State Family and Medical Leave Laws: Some states have their own leave laws that set lower employee thresholds or skip the 75‑mile rule entirely. Employers must review state requirements, as they may offer broader protections than federal FMLA. When both apply, follow the law most generous to the employee and run the leave concurrently when permitted.
- 75 miles is measured using surface miles, using surface transportation or public streets, roads, highways, and waterways by the shortest route possible.
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