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A determination whether or not the employer employs 50 employees within 75 miles must be made at the time the employee requests leave.  If the employer does not employ 50 employees within 75 miles at the time of the employee's request, the employee may renew his or her request for FMLA leave at a subsequent date.  Most significantly, once the employee is eligible to take this leave based on the 50-employee determination, the employee's eligibility is not affected by any further change in the number of employees employed at or within 75 miles of the worksite even if the decrease in employment is foreseeable.  29 C.F.R. § 825.111.  Moreover, if the employee pool drops below 50, the employer may not stop an employee's FMLA leave once it has already started.

Another issue is how the 75 miles is realistically measured.  The Tenth Circuit Court of Appeals addressed this issue and concluded that the 75 miles is 75 surface miles.  In Hackworth v. Progressive Cas. Ins. Co., WL 3291686 (10th Cir. 2006), an employee worked at Progressive Casualty Insurance Company at its site in Norman, Oklahoma.  When the employee's 12-week FMLA leave was about to expire, she advised the employer of her intent to return to her job.  The employer told her that her job had been eliminated during her FMLA leave and made no attempts to find her an equivalent position.  The employee sued under the FMLA.  The employer's defense was that it did not have the requisite number of employees within a 75-mile distance of this employee's job location and, therefore, it was exempt under the FMLA requirements.  The employer contended that the 75 miles are to be 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."  29 C.F.R. § 825.111(b).  The court had to decide the issue as to whether or not this regulation was valid, and concluded that it was.  The court reasoned that the purpose of the 75‑mile limit is to protect employers that had to find other employees for the duration of the regular employee's FMLA leave.  And thus, any other reason that would affect the feasibility of moving a worker from one site to another was relevant.