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10th Circuit Court of Appeals interprets the FMLA 50/75 Rule

When Congress enacted the Family Medical Leave Act (FMLA), it limited its application. For an employee to receive the benefit of the FMLA, their employer must have at least 50 employees within a 75 mile radius of the employee’s worksite. This is known as the 50/75 mile rule. Congress did not indicate whether it meant 75 surface or linear miles (“as the crow flies”). Congress delegated that task to the Department of Labor which issued regulations that state the 75 mile distance is measured in surface miles rather than linear miles (“as the crow flies”). This has been a source of contention for some employees that want to take advantage of the FMLA’s benefits. Kelly Hackworth fell into that category and asked the 10th Circuit Court of Appeals to interpret the FMLA 50/75 mile rule.

Ms. Hackworth worked for Progressive Insurance Company in Norman, Oklahoma. After taking time off work to take care of her mother, Kelly wanted to take advantage of the FMLA. She asked her employer to return her to the “same or similar position” she held before taking time off to care for her mother. Progressive denied her request. It felt it did not have to comply with the FMLA because there were only 47 employees within a 75 mile radius of Kelly’s worksite. Ms. Hackworth argued that if 3 Progressive employees in Lawton, Oklahoma were included then the FMLA 50 employee threshold would be met. Unfortunately, those 3 employees were 67 linear miles (“as the crow flies) and 75.6 surface miles from her work site. Kelly’s attorney’s argued that 75.6 miles was “within 75 miles”, however the Court of Appeals was not pursuaded and upheld the dismissal of her case. In making its holding the court noted that it was Congress’ intent that the 50/75 provision accommodate employer concerns about the difficulties an employer may have in reassigning workers to geographically separate facilities when an employee is out on FMLA leave. The court felt that using surface miles as the form of measurement made more sense than using linear miles, particularly if offices were separated by a natural obstruction such as the Grand Canyon.

The Bottom Line: Employers can take comfort knowing that offices separated by natural obstructions, such as the Cascade Mountains or the Olympic Mountains, will have their duty to comply with the FMLA determined by how many employees they have within a 75 surface mile radius of the impacted worksite.

Nothing in this blog should be considered legal advice. The information that is provided is general in nature. Nothing can substitute for a consultation with a legal professional who can address your particular legal matter.

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