Once your employee steps off U.S. soil, does the employee lose FMLA protection?
Consider these two scenarios:
In the first scenario, your employee requests FMLA to sit bedside with his mother, who suffering from terminal cancer. Mom is located in Mexico City, Mexico.
In the second scenario, you assign the employee to work in your Edinburgh, Scotland office (~150 employees), where she reports to your international operations and receives work.
Does FMLA apply to either of these scenarios? I take each one, in turn, below.
First, the Law
Let’s address the legalities up front. In one short paragraph, the FMLA regulations at Section 105(b) state simply that an employee outside the U.S. is not protected by the FMLA:
The FMLA applies only to employees who are employed within any State of the United States, the District of Columbia or any Territory or possession of the United States . . .
. . . Employees who are employed outside these areas are not covered by the FMLA and, accordingly, not counted for purposes of determining employer coverage or employee eligibility.
Seems easy enough: you remain in the United States, you enjoy FMLA. You leave the U.S., kiss the FMLA good bye.
Yet, as with all things in life, it ain’t that easy.
Scenario One: Caring for a Family Member Living Outside the U.S.
This is the easier issue to dispatch. Simply put, as long as the employee still remains employed within the United States, the employee has the right to take FMLA leave to travel abroad and care for a family member (child, spouse, parent). Here, the employee is providing psychological care sitting bedside with his mom.
Scenario Two: The Employee is Assigned to Work Abroad
Easy enough. But what if the employee’s health condition is at issue, and they are working outside the U.S., like Edinburgh, Scotland.
A plain reading of the regulation above tells us that an employee loses FMLA protection when they are employed “outside” the United States.
And I’ve got a case that illustrates this scenario.
This case involves Atef, who worked for his U.S. employer in South Korea for a multi-year period. While stationed there, Atef sought FMLA leave but was denied because he worked outside the United States. As the story goes, he later sued. In rejecting his FMLA claim, the court noted:
. . . there is no reason to think that the phrase “employed within” in section 825.105(b) of the regulations is referring to the place from which the employer made decisions about medical leave. Rather, the ordinary meaning of the term “in” refers to the employee’s physical work location . . . It is true that [Atef] alleges that he has been a California resident since July 2015, but the FMLA is not concerned with residency, just with employment . . .
Because Atef worked outside the U.S. — this time, for a several-year period — he was not protected by the FMLA. An old DOL opinion letter also backs this up (finding that employees on one- or two-year employment contracts working overseas are not protected by FMLA).
To answer the question above about the employee assigned to Edinburgh, Scotland, it seems similar to the Atef situation: she is assigned there, reports there, and receives her work there. Presumably, she’s there on a longer-term basis. As such, she is not eligible for FMLA leave.
Short-Term Assignment in Another Country
Atef’s situation is fairly straightforward. But what about the employee who is assigned to work abroad on a short-term basis and reports at all times back to the United States? Think of an employee who you assign to work abroad for a multi-week period, or even a month or two. They are not reassigned to the foreign location and otherwise report back to the boss in the United States.
This is a tougher call.
Here, I would likely find them to be employed “within” the United States and therefore remain eligible for FMLA leave. Think of it the other way around: wouldn’t it be an absurd result if you sent one of your executives to oversee a project in Japan for four weeks. They report to you, are paid through the U.S. payroll, and are in short-term housing. If they fall ill, would they really be ineligible for FMLA?
I don’t buy it.
Here, I think the case Hodge v. United Airlines, 821 F.Supp.2d 180 (D.D.C. 2011) is insightful. The Hodge court determined that an employee was ineligible for FMLA because he was working outside the U.S. in Hong Kong. Notably, Hong Kong was the work location he was assigned, where his work was directed, and where he reported. This was considered a long-term assignment, and he had no connection back to the States. Nevertheless, the case is useful in showing that an employee arguably becomes ineligible for leave only at the point she is assigned to the foreign location, reports there, receives assignments there, and is considered longer-term.
But What About the ADA?
Having said all this, don’t forget the ADA, which DOES apply to overseas employees. In other words, what the FMLA taketh away, the ADA giveth.
The ADA applies to U.S. employees employed by covered employers in foreign countries, provided the employee is a U.S. citizen and employed by a U.S. company or a foreign company controlled by an employer of American nationality.
So, ADA leave as a reasonable accommodation now comes into play for leave requests.
My head just exploded . . .