[Code of Federal Regulations]

[Title 29, Volume 3]

[Revised as of July 1, 2006]

From the U.S. Government Printing Office via GPO Access

[CITE: 29CFR825.111]



[Page 753-754]

 

                             TITLE 29--LABOR

 

         CHAPTER V--WAGE AND HOUR DIVISION, DEPARTMENT OF LABOR

 

PART 825_THE FAMILY AND MEDICAL LEAVE ACT OF 1993--Table of Contents

 

Subpart A_What is the Family and Medical Leave Act, and to Whom Does It 

                                 Apply?

 

Sec.  825.111  In determining if an employee is ``eligible'' under FMLA, how 

is the determination made whether the employer employs 50 employees within 75 

miles of the worksite where the employee needing leave is employed?



    (a) Generally, a worksite can refer to 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. On the other hand, there 

may be several single sites of employment within a single building, such 

as an office building, if separate employers conduct activities within 

the building. For example, an office building with 50 different 

businesses as tenants will contain 50 sites of employment. The offices 

of each employer will be considered separate sites of employment for 

purposes of FMLA. An employee's worksite under FMLA will ordinarily be 

the site the employee reports to or, if none, from which the employee's 

work is assigned.

    (1) Separate buildings or areas which are not directly connected or 

in immediate proximity are a single worksite if they are in reasonable 

geographic proximity, are used for the same purpose, and share the same 

staff and equipment. For example, if an employer manages a number of 

warehouses in a metropolitan area but regularly shifts or rotates the 

same employees from one building to another, the multiple warehouses 

would be a single worksite.

    (2) For employees with no fixed worksite, e.g., construction 

workers, transportation workers (e.g., truck drivers, seamen, pilots), 

salespersons, etc., the ``worksite'' is the site to which they are 

assigned as their home base, from which their work is assigned, or to 

which they report. For example, if a construction company headquartered 

in New Jersey opened a construction site in Ohio, and set up a mobile 

trailer on the construction site as the company's on-site office, the 

construction site in Ohio 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 New Jersey to the job site in Ohio, those workers sent from New 

Jersey continue to have the headquarters in New Jersey as their 

``worksite.'' The workers who have New Jersey as their worksite would 

not be counted in determining eligibility of employees whose home base 

is the Ohio worksite, but would be counted in determining eligibility of 

employees whose home base is New Jersey. For transportation employees, 

their worksite is the terminal to which they are assigned, report for 

work, depart, and return after completion of a work assignment. For 

example, an airline pilot may work for an airline with headquarters in 

New York, but the pilot regularly reports for duty and originates or 

begins flights from the company's facilities



[[Page 754]]



located in an airport in Chicago and returns to Chicago at the 

completion of one or more flights to go off duty. The pilot's worksite 

is the facility in Chicago. 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 

new concept of flexiplace. Rather, their worksite is the office to which 

the report and from which assignments are made.

    (3) For purposes of determining that employee's eligibility, when an 

employee is jointly employed by two or more employers (see Sec.  

825.106), the employee's worksite is the primary employer's office from 

which the employee is assigned or reports. The employee is also counted 

by the secondary employer to determine eligibility for the secondary 

employer's full-time or permanent employees.

    (b) The 75-mile distance is measured by surface miles, using surface 

transportation over public streets, roads, highways and waterways, by 

the shortest route from the facility where the eligible employee needing 

leave is employed. Absent available surface transportation between 

worksites, the distance is measured by using the most frequently 

utilized mode of transportation (e.g., airline miles).

    (c) The determination of how many employees are employed within 75 

miles of the worksite of an employee is based on the number of employees 

maintained on the payroll. Employees of educational institutions who are 

employed permanently or who are under contract are ``maintained on the 

payroll'' during any portion of the year when school is not in session. 

See Sec.  825.105(c).



[60 FR 2237, Jan. 6, 1995; 60 FR 16383, Mar. 30, 1995]