May 20, 2005 / Issue No. 2-05
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STP Instructor Training Workshop to Take Place June 10-11
AGC Labor and Employment Law Council Holds 21st Annual Symposium
Union Contractors Meet Operating Engineers’ New President
Open Shop Contractors Discuss Current Concerns
Heavy & Highway Alliance Executive Speaks About National Project Agreement
Carpenters Cancel Agreements with Iron Workers and Sheet Metal Workers
Contractor Lawfully Repudiated 8(f) Agreement During Contract Term
Secret Negotiations Justified Contractor’s Withdrawal From Bargaining Unit After Accepting Multiemployer Agreement
Employee Can Be Fired for Refusal to Authorize Credit Check
New USERRA Posting Requirement Now in Effect
Distance Between Work Sites for Determining FMLA Coverage is Measured by Public Roads, Not Linear Distance
DOL Releases Database of Available College Students with Disabilities
NLRB Offers Online Answers to FAQs

  Distance Between Work Sites for Determining FMLA Coverage is Measured by Public Roads, Not Linear Distance
A project manager who took a leave of absence to have open-heart surgery was not eligible for Family and Medical Leave Act (FMLA) protection because the contractor that employed him had fewer than 50 employees within a 75-mile radius as measured by surface miles rather than “as the crow flies,” the U.S. Court of Appeals for the Fifth Circuit (LA, MS, TX) has held.

The contractor, PCE Constructors, hired Larry Bellum to manage a project in Fernwood, Mississippi.  At the relevant time, PCE employed 41 people at the Fernwood site and 14 at its headquarters in Baton Rouge, Louisiana.  The distance between the Fernwood site and the headquarters is less than 70 linear miles but is greater than 88 miles over public roadways.

On December 26, 2000, Bellum began his medical leave.  When he inquired about returning to work on March 1, 2001, he was told that there was no longer any work for him because the Fernwood project was finished.  Bellum was formally terminated on March 16, 2001, without ever returning to work.  He then sued PCE under the FMLA.

The FMLA entitles an “eligible employee” with 12 weeks of leave for a serious health condition during any 12-month period.  The statutory definition of “eligible employee” expressly excludes  “any employee of an employer who is employed at a worksite at which such employer employs less than 50 employees if the total number of employees employed by that employer within 75 miles of that worksite is less than 50.”  Labor Department regulations implementing the FMLA state that 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."  According to the regulation, the distance should be measured “as the crow flies” only when there is no "available surface transportation between worksites." 

Bellum argued that the regulation was an invalid interpretation of the statute, but the court disagreed.  The court found that the method of measuring the 75-mile distance constitutes a statutory gap that the Secretary of Labor was authorized to fill and that the regulation in question “recognizes that the FMLA is concerned with the practical issue of how an employer will be able to staff its business when an employee takes leave.” 

Bellum v. PCE Constructors, Inc., Case No. 04-60409 (5th Cir., 4/25/05).

Further guidance on the FMLA is found on the Labor & HR Topical Resources page of the AGC Web site. [ return to top ]