Key to remember:
The FMLA doesn't entitle employees to remote work
10/09/2024
Working remotely could be an accommodation
Denise had a strong career with the company for many years. In June 2016, she was allowed to work remotely to care for her daughter who was hospitalized with serious medical conditions.
This was not Denise's first time away from the office for an extended period. Before June 2016, she had taken leave to care for her daughter, as well as for her own surgery. The company approved the leaves under the federal Family and Medical Leave Act (FMLA) in both cases.
Working remotely and taking FMLA leave, however, are two different constructs. When someone is working, an employer can't deduct from an employee's 12 weeks of FMLA leave.
Employer limits her remote work schedule
Between Denise being out while her daughter had a 15-day hospital stay, and working remotely, her supervisors voiced their concerns about how long Denise had been away. They limited Denise to one day of remote work per week, even though others in the department regularly worked from home. She could still take FMLA leave as needed.
In fact, her supervisors encouraged Denise to speak with someone in HR about using paid time off or intermittent FMLA leave rather than working remotely. She continued to take the leave.
About four months later, however, Denise decided to retire, in part spurred by the company's refusal to let her work remotely. She also sued, claiming that the company violated her FMLA rights by not allowing her to work remotely more than one day per week.
Employer prevails in court
While Denise acknowledged that the company never denied her formal request for FMLA leave, she argued that it discouraged her from taking FMLA leave. She argued further that the limitations the company placed on her remote work unlawfully interfered with the exercise of her rights under the FMLA.
The court didn't buy Denise's argument. It held that the FMLA protected Denise's right to take leave, but it did not entitle her to work remotely. Nor does it make it unlawful for employers to discipline employees who work remotely against employers' wishes. Remote work may be another form of accommodation, perhaps under the Americans with Disabilities Act (ADA), but it is not "leave" within the meaning of the FMLA.
Kemp v. Regeneron Pharmaceuticals, Inc., Second Circuit Court of Appeals, No. 23-174-cv, September 9, 2024.
The FMLA doesn’t give employees the right to work remotely. However, it could be a reasonable accommodation under other laws, such as the ADA.
This article was written by Darlene M. Clabault, SHRM-CP, PHR, CLMS, of J. J. Keller & Associates, Inc. The content of these news items, in whole or in part, MAY NOT be copied into any other uses without consulting the originator of the content.
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