Remote work, intermittent leave make FMLA compliance ‘much more challenging’

Family and Medical Leave Act administration is at once a foundational part of HR practice in the U.S. as well as one of its most challenging. 

The past three years have not made the task any easier, especially given the rise of remote work, according to Robin Shea, partner and editor in chief at employer-side firm Constangy, Brooks, Smith & Prophete.

In a webinar on Wednesday, Shea told attendees that remote work makes FMLA administration “much more challenging,” as FMLA-eligible remote employees may be inclined to check emails or perform other tasks that would otherwise be considered part of their job — even while they’re on FMLA leave.

“Sometimes it’s the employer who wants the employee to work, but I find more often nowadays that it’s the employee who wants to know what’s going on or wants to stay engaged,” Shea said.

For that reason, some employers may opt to cut the employee’s access to company email while they’re on leave, or instruct managers not to call workers during leave, Shea added.

But there is another scenario under which that advice doesn’t hold, one that management-side attorneys have previously raised the alarm about: intermittent leave.

Timekeeping for intermittent FMLA leave can be a “pain in the neck” due to the sheer amount of data that both employers and employees need to account for, Shea said. She noted that some employers capture time by creating a spreadsheet and requiring the employee to record intermittent FMLA time each day. The employee then submits the spreadsheet to the employer once per week.

Digital timekeeping systems also may be used, “but that would depend on what kind of system you have,” Shea said.

Employers must be careful to distinguish FMLA time off from non-FMLA time off. “Walking the dog should count as time not worked,” Shea said, “but that should not count as time not worked under the FMLA.”

She noted that employers can, generally, count intermittent time not worked due to FMLA reasons as FMLA leave. But that process may be more difficult for employees who are exempt under the Fair Labor Standards Act, since employers typically would not track hours worked for employees who are salaried.

Employers have options for tracking exempt workers’ intermittent leave, “but they’re going to have to be very careful,” Shea said. Intermittent FMLA leave absences should not be charged under an attendance policy, she added.

Separately, employers may need to consider how different state leave laws interact for remote workers.

Shea gave the example of an employee who works in Massachusetts but who reports to an employer based in New Hampshire. This employee would be considered an employee of the company’s New Hampshire offices for FMLA purposes because they receive assignments from that office. But for state leave law purposes, the employee would be considered a Massachusetts employee, Shea said.

That’s notable because Massachusetts has a paid family and medical leave law, whereas New Hampshire does not.

“You have to determine which state and local leave laws apply to everyone in your workforce,” Shea said. Employers could choose to apply the most generous applicable state leave law to all of its employees regardless of location, she added, as “it can cost one employer a fortune” to design policies that are compliant in separate states.