Excerpted from Texas Employment Law Letter, written by attorneys at the law firm Ford & Harrison LLP

Remember the poem in which Robert Frost talks about how many "miles to go" before he sleeps? We thought about that poem while writing about this case, in which an employee has miles to go before being covered by the Family and Medical Leave Act (FMLA). It's good news for employers.

As the crow flies

Larry Bellum worked for PEC Constructors. Its headquarters are in Baton Rouge, Louisiana, but he worked at a facility in Mississippi. As the crow flies, the distance between Baton Rouge and the Mississippi facility is around 68 linear miles. If the distance is measured over public roadways, however, it's 88.5 miles.

Why does distance matter? An employee is eligible for the FMLA's protections only under certain circumstances. One is that the employer must have at least 50 employees within 75 miles of the work site. If the employer has fewer than 50 employees within 75 miles, the employee isn't covered. For Bellum, that meant he'd be FMLA-eligible only if the distance was measured "as the crow flies."

Open-heart surgery

In December 2000, Bellum told his supervisor that he needed to take leave from work for open-heart surgery. He took leave, and after the surgery his supervisor stayed in touch with him and, according to Bellum, said a job was waiting for him once he had recovered. He recovered from the surgery, and came back to his work site, saying he was rested, fit, and ready to go. The company said no work was available for him because the project was completed. He filed a lawsuit saying that he was an eligible employee under the FMLA and should have been rehired after completing his leave.

Courts' decisions

The courts ruled for the employer because Bellum wasn't an eligible employee under the FMLA. The company didn't employ 50 employees within a 75-mile radius of the work site where he worked, one of the basic requirements for coverage.

Surface miles or linear miles?

So should you use linear miles or surface transportation miles to measure the 75-mile requirement for FMLA coverage? The appeals court rejected Bellum's argument that the mileage should be measured as the crow flies and basically said the crow can keep on flying. Why? Most U.S. workers use surface transportation to travel to work. By using surface transportation to determine eligibility, the FMLA is implemented in a way that covers most employees. It just makes sense. As a result, Bellum had no FMLA claim.

Bottom line for employers

"Is he eligible?" is the first question you need to ask when an employee may be covered by the FMLA. Too often this step is missed. And don't forget to look at whether the employee has worked enough hours to be covered. It isn't always an easy calculation. FMLA eligibility is a game not just of miles, but inches.