What does an employer do when an employee who is on leave wants to start working remotely? Several considerations are in order, including whether the job lends itself to being performed remotely, if the employee has a good work ethic, and whether medical authorization supports remote work.
Some employers tell employees that they should not perform any work while on Family and Medical Leave Act (FMLA) “block” leave, as opposed to intermittent leave or reduced schedule leave, said Robin Shea, an attorney with Constangy, Brooks, Smith & Prophete in Winston-Salem, N.C. “Block leave” is a single, uninterrupted period of time away from work.
Some employers cut off their access to the company’s system during the FMLA leave period, she added. “This is a very clean way to avoid any issues.”
But if the FMLA leave is intermittent or on a reduced schedule, the employer would have to allow some work during the nonleave time, unless the job cannot be performed remotely, Shea said.
“It is unlawful to force an employee to take more FMLA leave than he or she really needs, or to charge the employee for FMLA time when the employee is working,” she emphasized.
One way to handle these situations, Shea noted, is if the FMLA medical certification is recent and puts the employee out on block leave for the employer to deny the request to work based on current medical certification. “That won’t necessarily prevent the employee from getting a new medical certification, but it’s a start,” she said.
If the medical certification is old, or it is ambiguous about whether the employee can perform some work while on leave, the employer should require the employee to present an updated medical certification, she said. That certification should address clearly whether remote work is possible and on what basis. Then, the employer should follow the recommendation of the employee’s healthcare provider, Shea added.
Is Remote Work Feasible?
Aside from medical certification issues, there’s the more fundamental question of whether remote work is feasible. Many jobs must be performed onsite — such as custodians, restaurant workers, and healthcare providers.
Under the Americans with Disabilities Act (ADA), “it is important for employers to have up-to-date job descriptions that accurately reflect essential job duties and identify duties that can or cannot be performed remotely,” said Betty Graumlich, an attorney with Reed Smith in Richmond, Va., and Tysons, Va.
If someone requests remote work as an ADA accommodation and remote work isn’t possible, the analysis doesn’t stop there.
“If the job has to be performed onsite, it may be possible to temporarily reassign the employee to a job that can be performed remotely,” Shea explained. “If so, employers can consider it. But in many cases that will not be possible.”
Individualized Considerations
Under the ADA, remote work requests must be considered on an individual basis. If an onsite worker requests ADA leave as an accommodation, individualized considerations include whether the employee has strong and reliable internet access, a reasonable amount of privacy, and minimal domestic distractions, Shea said.
Shea also would examine the individual employee’s work ethic, communication, technical literacy, and honesty and reliability based on their time at the workplace.
Alexis Knapp, an attorney with Littler in Houston, cautioned that employers should remember not to respond to a request for leave as an ADA accommodation by saying, “That is not our policy,” or “we don’t let anyone else work remotely.” Instead, consider whether an exception to the policy would be a reasonable accommodation.
Wage and Hour Issues
If an employee is nonexempt, the employer would need to ensure an employee is accurately documenting all time worked, Shea said.
If the employee is exempt from overtime, under federal law the employee would normally have to be paid for the entire workweek if any work is performed that week.
If the ADA leave is also covered by the FMLA, the employer can dock even an exempt employee for the FMLA time and pay only for the time that is not charged to the FMLA, Shea added.
In addition to these considerations, employers should remember to review applicable paid leave laws, which vary from state to state, or consult with the short-term disability and workers’ compensation carrier about options.
“Paid leave is generally intended to cover time when an employee is not working,” said Nicholas Corsano, an attorney with Baker McKenzie in New York City.
“If the employee is well enough to work, and remote work is available and possible given the job position requirements, then the time should be charged to work and not sick leave or PTO [paid time off],” Graumlich said.
Takeaways
If a job cannot be performed remotely or an employee has a questionable work ethic, allowing remote work could be either impossible or inadvisable, Shea said. Allowing remote work opens the door to wage and hour issues, she noted.
But if “the employee wants to work and can do it, allowing remote work may improve the employee’s morale while on leave and facilitate recovery,” she said. “From more of a business standpoint, it ensures that at least some work is getting done while the employee is on leave.”
Their remote work could lessen the burden on co-workers and supervisors, and make it unnecessary to hire a temporary employee to fill in.
“Assuming that the job- and employee-specific considerations are positive and that the healthcare provider approves the remote work, and assuming the employer is not unduly concerned about the wage [and] hour implications, allowing some remote work while an employee is on ADA or FMLA leave could be a good thing for both the employee and the employer,” Shea said.
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