Editor's Note
Return to Office Can Raise FMLA Issues
Return to office policies can raise all sorts of employment law issues. If remote has been the norm, working at an office may not be possible for everyone.
Employees may have disabilities the employer doesn't know about that remote work accommodated. There are lots of reasons an employee may not want to reveal a disability, especially if they don't have to.
Employees or someone in their family may have developed medical conditions that would make the employee eligible for FMLA, including intermittent leave for treatment and appointments. It was never an issue because employees worked around them when they were remote.
There are also disparate impact issues. Does the new RTO policy adversely impact women or people of color, especially if employees were hired in remote positions?
It's been almost 5 years since the pandemic shutdown and people are used to flexibility. Before you take that away, it's good to consider who will be affected, how, and whether there are issues with protected leave or accommodations.
- Heather Bussing
The Family and Medical Leave Act does not require employers to allow qualified employees to work remotely. While such requests may fall under the Americans with Disabilities Act’s reasonable accommodation obligation, the FMLA only provides leave for employees who are unable to work whether remotely or in person. However, the FMLA also prohibits employers from interfering with benefits provided to the workforce. In a recent case, the Second Circuit Court of Appeals used this principle to determine that attempts to restrict remote work by an employee taking FMLA leave constituted such interference.
In Kemp v. Regeneron Pharmaceuticals Inc., the plaintiff had taken FMLA leave for a serious health condition. She alleged that her manager had advised her not to work remotely because of her absences, and to use additional FMLA leave or paid time off if she needed to be out of the office. The plaintiff later retired and sued, claiming that the employer had interfered with her FMLA rights by restricting a benefit made available to other employees.
The Second Circuit agreed, finding that the FMLA’s plain language prohibits employers from interfering with their use of employee benefits. Even though the employer never denied any FMLA request or directly prohibited the plaintiff from working remotely, discouraging such use in and of itself constitutes FMLA interference. While the company was not obligated to allow remote work in non-ADA situations, by offering this benefit, it was required to allow full use by employees who also took FMLA leave. Despite this holding, the court affirmed dismissal of the lawsuit based on the employer’s statute of limitations arguments.
When employees use FMLA leave, employers sometimes expect the employee to make up hours missed or otherwise compensate for the effects of their absences from the workplace. Employers should recognize that FMLA leave is an entitlement, meaning that the employee cannot be penalized for their use of such leave time. Based on this case, even suggestions that an employee restrict their use of a benefit available to other workers will be sufficient to support a legal claim for FMLA interference.
