In Bellum v. PCE constructors, Inc., decided by the Fifth Circuit, the dispute concerned whether Bellum is an "eligible employee." PCE maintained that Bellum falls within one of two enumerated exceptions to the definition of eligible employee: "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 the employer within 75 miles of that worksite is less than 50." 29 U.S.C. § 2611(2)(B)(ii). This exception applies, PCE contended, because its headquarters, as measured over public roads, is more than seventy-five miles from the FPI worksite. Bellum countered that the exception does not apply because the linear distance, i.e. "as the crow flies," between FPI and the Baton Rouge headquarters is less than 70 miles.

The district court resolved this controversy by consulting 29 C.F.R. § 825.111(b), which states 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." The regulation goes on to provide that the 75-mile distance should only be measured as the crow flies when there is no "available surface transportation between worksites." The district court granted summary judgment to PCE because, under the method of measurement set forth in the regulation, Bellum was not an FMLA-eligible employee.

The Fifth Circuit concluded that the decision of Congress not to define a method of measuring the 75 mile distance constitutes an implicit statutory gap the Secretary of Labor is authorized to fill by 29 U.S.C. § 2654.

The Court held that 29 C.F.R. § 825.111(b) 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. Given that the overwhelming majority of workers in this country use surface transportation to get to work, the regulation implements the statutory scheme in a way that is consistent with the intent of Congress and germane to the challenges employers face in complying with the FMLA.

The U.S. Supreme Court recently refused to review the Fifth Circuit decision above, so the decision stands.