Over the past few months, I’ve been asked by clients whether foreign nationals who are in the United States on work visas are eligible for FMLA leave.
Honestly, I didn’t know the answer to the question when I was first asked. So, I took this question to the one and only person I entrust with all my immigration questions: my colleague Tejas Shah.
As a General Matter, an H-1B Worker Must Be Paid (with some exceptions)
Tejas is quick to point out that a U.S. employer hiring an H-1B worker is required to pay the worker while he/she is working for the employer. In other words, an employer is not permitted to “bench” an H-1B worker, or otherwise give an H-1B worker an unpaid leave, except in rare instances. Placing an H-1B worker on an unpaid leave without authorization creates substantial risk, as an employer becomes susceptible to a back wage and/or front pay award by the Department of Labor.
The FMLA and ADA Exceptions
What are those rare instances when an H-1B worker can take an unpaid leave? The Immigration and Naturalization Services (INS) and DOL have made it clear that H-1B workers are entitled to FMLA leave on the same terms as U.S. citizens, whether the leave is paid or unpaid under the employer’s policies. So, an H-1B worker can request and be approved for an unpaid FMLA leave on the same terms as the employer’s U.S. workers. Of course, whether the leave is paid depends on the employer’s policies for paid leave.
The same individual also is protected by the Americans with Disabilities Act, so leave as a reasonable accommodation under the ADA must be considered in the same way it would for a U.S. national.
Documentation is Critical
Because of the risks associated with a DOL finding that an unpaid leave was not authorized, Tejas reminds us that it is critical for employers to properly document the FMLA leave. Whenever possible, an employee leave request form should be used, and the employer must provide the requisite FMLA notices and secure medical certification so it can provide DOL and/or INS with all the information necessary to establish that the employee was appropriately on an FMLA-protected leave of absence.
What About U.S. Citizens Working Abroad? Are They Protected by the FMLA?
Nope. With the exception of Title VII, ADA and ADEA, employment laws do not apply to U.S. citizens working outside the country, even if they are working for an American company. So, a U.S. national loses FMLA protection once he steps off U.S. soil.
Fascinating. Who knew?
[Special hat tip to my colleague Tejas Shah, who not only is a phenomenal immigration attorney you should entrust with all of your foreign national visa work but, more importantly, one of the most sincere and honorable guys you’ll meet in our line of work.]