The Essential Guide to Family & Medical Leave

chapter 3 | is the employee covered by the FMLA? | 39
To measure the 75-mile radius, you must use the shortest route on public
streets, roads, highways, and waterways from the worksite. Although
employees have tried to argue that the 75 miles should be measured “as the
crow flies,” courts have determined that this distance must be measured
using actual routes that could be used between worksites.
When to Make Your Count
You must determine whether the company has the minimum number of
employees at or within 75 miles of the employee’s worksite on the day the
employee requests leave, not the date the employee’s leave will begin. If your
company had the requisite number of employees on the day the employee
requested leave, the employee has met this eligibility requirement, regardless
of later reductions in your local workforce.
Example: Your company has five stores in downtown Omaha, employing a total of
63 employees. Next month, it plans to close two stores that employ a total of 21 people;
after those closures, the company will have only 42 employees. Ted works at one
of the stores that will remain open. He asks his supervisor, Margo, for three weeks off
beginning six weeks from now, to look after his mother following hip replacement
surgery. Margo, who knows about the store closure plans, tells you she is going to
deny FMLA leave because there will be only 42 employees when Ted’s leave starts.
Fortunately, Margo speaks to you before making this mistake. You correctly point
out that the company must determine whether this eligibility requirement is met
on the date an employee requests leave, not the date leave is scheduled to begin.
Because the company had more than 50 employees in the city at the time Ted made
his FMLA request, he is entitled to leave as long as he meets the other eligibility
requirements.
Determining Where an Employee Works
It’s not hard to identify the employee’s worksite when he or she works in
the same cubicle every day. Figuring out the worksite for employees who
travel or telecommute presents more of a challenge, however. For employees
with no fixed company worksite, the worksite where the employee reports