The FMLA was enacted in 1993, way back when fax machines had just begun ruling the world and we were only learning how to send an email to a friend. When the law was passed, FMLA didn’t contemplate a remote workforce, let alone one that would be hastily relegated to their homes during a global pandemic three decades later.
For well over a year, many of your employees have been working from home. Some report to a manager at the headquarters or worksite. Plenty of your remote employees, however, report to an individual who also is working remotely. And that employee is reporting to, well, you get the picture . . .
Let’s assume you have an outstanding employee, Terry, who works at your Texas-based company. He also suffers from a debilitating medical condition. Terry realizes life is far too short, so he plans to work for you full-time over the next year out of his RV. He is spending summer 2021 in sunny Florida, the fall in Massachusetts to watch the leaves turn, and then the winter with his extended family in New Jersey, beginning after Thanksgiving.
Assuming Terry needs medical leave at any point during this journey, is he eligible for FMLA leave?
What about state leave laws? Do they apply, too?
First up, FMLA
Remember, to be eligible for FMLA leave, an employee must work at a worksite where 50 employees work within a 75-mile radius. That’s fine if Terry is working out of the company HQ in Texas. But what happens when he hits the road in his RV?
The FMLA regulations give us an initial framework here:
An employee’s personal residence is not a worksite in the case of . . . employees who work at home, as under the concept of flexiplace or telecommuting. Rather, their worksite is the office to which they report and from which assignments are made.
As an important aside, has anyone ever heard remote work being called “flexiplace”? Yeah, me neither.
In any event, for purposes of FMLA, Terry’s eligibility is determined not by the location of his RV, whether in Florida, Massachusetts or New Jersey. Rather, in a telecommuting arrangement from his RV, his worksite is the office to which he reports and from which assignments are made.
Assessing Terry’s eligibility is fairly straightforward if he reports to and receives assignments from the Company’s Texas HQ, which accounts for 65 employees. That’s easy – he is included in the Texas HQ count, and he would be eligible for FMLA leave if he otherwise has worked for the Company for 12 months and 1250 hours in the previous 12 months.
The FMLA puzzle gets fuzzy, however, if Terry’s boss is working remotely from his own home in Oklahoma (or heck, even in a different RV roaming the countryside). Is Terry still reporting to and receiving assignments from Texas? Clear as mud, right? As to this conundrum, neither the Department of Labor nor the courts have given us any guidance on how we apply the regulations in this remote work scenario.
There are good arguments on both sides of the issue, but it seems to me that “office” to which Terry reports remains in Texas, even if the assignments might be coming from the boss in Oklahoma. The spirit of the regulations suggest that we’re still looking to Texas as the work location because of the reference to the “office” in the regulations.
What About State Leave Laws? What Laws Apply and When?
My head hurts, and I haven’t yet addressed which state leave laws apply to Terry during his jaunt across the country. Thankfully, one of my Littler colleagues, Amber Spataro, did the heavy lifting for me.
Terry and his RV actually are Amber’s concoction, though a typical scenario that could play itself out in real life. In analysis she provided recently in a “Dear Littler” letter, Amber analyzed the state leave law issues this way:
Terry also may be covered by state leave laws, should a covered event occur. For example, Massachusetts has a Paid Family Medical Leave Act (PFML). Unlike FMLA, to be eligible to receive paid leave under PFML, a worker only must have earned at least $5,400 in the previous 12 months. PFML eligibility is not dependent on how long an individual has worked for a current employer – it applies to all W-2 employees working in Massachusetts (which Terry may be for the part of the year that he is working in Massachusetts). If Terry falls ill after earning more than $5,400 as a Massachusetts employee, he may be covered, and you may be required to withhold pay from his paycheck to fund this benefit. Similarly, New Jersey’s Family Leave Act (NJFLA) applies to employers of 30 or more employees anywhere in the world and employees working in New Jersey who have been employed by the employer for at least one year and have worked at least 1,000 hours in the past 12 months. NJFLA allows up to 12 weeks off for an employee to, among other things, bond with a new child or care for a covered family member, but does not apply to one’s own disability or injury. Therefore, if Terry falls ill while in Massachusetts and uses his 12 weeks of FMLA leave and Massachusetts PFML for his own illness, when he arrives in New Jersey in November, he may have up to 12 weeks of time off still available to him under the NJFLA if his mother falls ill and he needs to care for her. He also may be eligible for New Jersey Family Leave insurance benefits through the state, and you may need to fund such benefits as well.
Whoa, Amber, my head is spinning!
Insights for Employers
When it comes to a remote employee’s eligibility for FMLA or state leave law, you must ensure you have policies and procedures in place to stay compliant with the law. While many employers have a remote work or telework policy already in place, these arrangements have (until now) applied only sporadically and on a smaller scale. Importantly, remote work programs of the past likely neglected to address the fundamental differences between mandatory telework (at the employer’s direction) and voluntary telework (at the employee’s request).
Additionally, it’s also critical that you require employees to notify you whenever they will be working from a different jurisdiction, as you will need to track whether they are entitled to a statutory leave of absence under the laws of the state/city in which they are performing work.
Here are a few resources to keep in mind as you are working through these issues:
- Put Remote work policies and agreements in place. Our Littler Remote Work Toolkit for Employers contains a Guide, Model Policy and Model Agreement for companies to use when implementing remote work and telework programs in the pandemic and post-pandemic era. Contact me for more details.
- This issue ain’t going away. The results of our Littler annual survey make clear: employees want remote and hybrid work, and it’s not going away. As such, it’s critical that employers consider a structure for remote work moving forward. Among other things, these decisions will implicate leave of absence issues.
- International remote workers. What laws apply when a wandering worker wishes to telework from abroad for personal reasons? Get our take here.
One last thing: If you’re dealing with remote employees issues, you clearly are dealing with payroll tax questions. Most states require an individual to pay state income tax if they are living in the state for more than 183 days (roughly half the year). But there are exceptions to the general rule you need to know about. For a great explanation of the payroll tax issues involved with remote employees, click here for my colleague Will Weissman’s take on the issues you should be thinking about.