The U.S. Court of Appeals for the 10th Circuit has rejected a woman's argument challenging the validity of a Department of Labor regulation under the Family and Medical Leave Act (FMLA).

The case involved a lawsuit filed by Kelly Hackworth, who alleged that Progressive Casualty Insurance Company violated the FMLA in failing to reinstate her to the same or a similar position upon her return from FMLA leave.

The company argued that the lawsuit should be dismissed because Hackworth wasn't an "eligible employee" under the FMLA because Progressive did not employ at least 50 people within 75 surface miles of Hackworth's worksite in Norman, Oklahoma.

At the time Hackworth began her leave, Progressive employed a combined total of 47 employees at its Norman worksite and its Oklahoma City worksite, which is within 75 surface miles of its Norman worksite. The company also employed three additional employees at its Lawton worksite, which is more than 75 surface miles and 67 linear miles from the Norman worksite.

Hackworth said she was an eligible employee under FMLA, arguing that the determination on whether an employer employs 50 employees within 75 miles should be measured "as the crow flies" (that is, in linear miles).

The district court dismissed the lawsuit, ruling that a Department of Labor regulation, 29 C.F.R. § 825.111(b) , which states that the 75-mile distance must be measured in surface miles, was owed judicial deference.

Hackworth appealed before the U.S. Court of Appeals for the 10th Circuit, claiming that the Department of Labor's regulation was inconsistent with the FMLA.

However, the U.S. Court of Appeals for the 10th Circuit--which covers Colorado, Kansas, New Mexico, Oklahoma, Utah, and Wyoming--upheld the district court's ruling. The appeals court said the Department of Labor's regulation is consistent with the FMLA, citing several reasons.

"First, the regulation represents a plausible and reasonable reading of the term 'within 75 miles," the court wrote. "Second, the regulation furthers the 50/75 provision's purpose in that a surface measurement is a reasonable proxy for judging an employer's ability to relocate an employee from one worksite to another in order to cover for an employee on FMLA leave. Third, the regulation is not crafted in such a way that it unreasonably favors employers over employees. Finally, the only one of our sister circuits to consider the issue before us, the Fifth Circuit, has upheld 29 C.F.R. § 825.111(b) as consistent with the FMLA."

Sources: Appeals Court Ruling (PDF) , Jottings by An Employer's Lawyer