FMLA 75-Mile Eligibility Measured by Road

Larry Bellum worked for PCE Constructors Inc., managing its site in Fernwood, Mississippi. PCE had a staff of 14 at its Baton Rouge headquarters and 41 at the Fernwood site. Bellum drove each day between his home in Baton Rouge and Fernwood, a round trip of about 190 miles. The distance between PCE’s headquarters and Fernwood was between 66.5 and 69.5 miles “as the crow flies,” but 88.5 miles over public roadways.

    Bellum was granted a medical leave for open-heart surgery. Following his recovery from surgery, PCE terminated Bellum for lack of work.

    Bellum sued PCE under the Family and Medical Leave Act. The trial court found that Bellum was not an “eligible employee” for FMLA leave. That law covers employees at a work site of an employer that has at least 50 employees within a 75-mile distance of the work site. The trial court held that PCE employed fewer than 50 employees within 75 miles of the Fernwood work site and dismissed the claims. Bellum appealed.

    The U.S. Court of Appeals for the 5th Circuit in New Orleans affirmed. It relied upon FMLA’s regulations, which provide that the 75-mile distance should be “measured by surface miles, using surface transportation over public streets.” The 75-mile distance should only be measured as the crow flies when there is no “available surface transportation between work sites.” Because PCE’s headquarters, as measured over public roads, was more than 75 miles from the Fernwood work site, Bellum was not eligible for FMLA leave.

    The U.S. Supreme Court has declined to review the decision. Bellum v. PCE Constructors Inc., 407 F.3d 734 (5th Cir.), US, No. 05-640, cert. denied 1/17/06.

    Impact: Employers are cautioned that FMLA has technical requirements as to which employees are eligible for leave. Therefore, employers should exercise care in applying FMLA policy.