Human Resource Blog

Exempt Employee on FMLA

What is the standard policy for exempt employees on FMLA who work part of the time while at home? Should all hours be counted as FMLA hours when/if there is no tracking available?

No!! If the employee is working, and the employer is counting that time as FMLA, the employer is in violation of federal law. We could never, ever recommend that an employer do this.

Under FMLA, as you know, employees are entitled to up to 12 weeks of unpaid, job-protected leave. An employee who is working is not on leave. It is that simple.

There is no law that an employer must permit an exempt employee to work from home. But if the employer decides it is mutually beneficial for an exempt employee on FMLA to work from home, then there needs to be a way to track it. The employer may use the honor system, and simply have the employee track the hours that she works from home each week. Or, there are various inexpensive software systems that will capture screenshots and can verify when an employee is performing work on her computer. Or, the employer and employee can agree in advance that the employee will work 10 hours per week from home. But permitting an employee to work from home, and counting the entire week as FMLA, is depriving an employee of their FMLA rights under federal law.

Suppose Janet is an exempt employee who normally works 40 hours per week. Janet works from home while on FMLA. She puts in 10 hours per week. Janet should be charged for 30 hours of FMLA each week — not 40 hours!

FMLA is one of the few situations when an exempt employees salary can lawfully be prorated based on the number of hours worked. So in our example above, Janet would be paid 1/4 of her usual weekly salary, and use 30 hours of unpaid FMLA leave.

The simplier alternative, of course, is for the employer simply to not permit an exempt employee on FMLA to work from home. The employee can come to work, or can be on unpaid FMLA leave. However, in some cases it will benefit the employer to permit an employee to work from home.