Human Resource Blog

FMLA

We currently have an hourly employee who is on FMLA leave due to the birth of her daughter. She has elected to take the 12 weeks of FMLA leave. Her doctor has approved her six week LOA, and informed her that she can go back go work after that. Due to daycare issues, she cannot go back until 12 weeks. She has asked if she can work from home during the next 6 weeks, until she can come back to work. We can accomodate this request.

My question is if we put her back on the payroll for the 10-20 hours a week she will be working, do we have to take her off FMLA leave, even though she is working from home, and not in the office?

Yes, you have to take the employee off FMLA if she is working.  An employee who is working is not on FMLA for the hours that she is working, by definition. FMLA is unpaid, job-protected leave that employers must grant under the federal Family and Medical Leave Act. Leave does not mean *the employee is working from somewhere other than her office.* It means *the employee does no work whatsoever.*

A new mother (or father) is entitled to up to 12 weeks of unpaid, job-protected FMLA for baby bonding, at any point during the childs first year. This new mother has used 6 weeks of FMLA on childbirth disability, which means that she can use an additional 6 weeks for baby bonding. There are no exceptions to this regulation. You need to inform the mother of her right to take the 6 continuous additional weeks, and give her that option.

You are under no legal obligation to allow this employee to work from home. If the employee had a permanent disability, you would have to accommodate reasonable requests. But childbirth is not a permanent disability, and this employee is released to return to work. You would be well within your rights to tell her she can take the additional 6 weeks off, but must return after a total of 12 weeks of FMLA, or be fired.

This employee is physically able to work, so any additional time she takes off is for baby bonding. When an employee takes FMLA for baby bonding, the employer can require that the FMLA NOT be intermittent. In other words, you could lawfully give the employee a choice between returning to working her previous schedule (at your office), or taking one to six more weeks off work entirely.

However, you may decide that it is in your best interest to permit this employee to work from home.

You do not mention if the employee was full-time before she went on FMLA, but we will assume that she was. Obviously, if you permit the employee to work from home, you must pay her. An employee who is working is (by definition) not on FMLA for the hours she is working.  Suppose Suzie worked 40 hours per week in the past. You have decided to permit Suzie to work 20 hours per week from home, and take 20 hours per week of intermittent FMLA for baby bonding. Once you approve intermittent FMLA for baby bonding, the employee could continue to work half-time for another 12 weeks until she has used all her available hours of FMLA.

Most employers find intermittent FMLA for baby bonding very difficult to administer, which is why the 2009 regulations allow employers to decline it. We would advise caution in permitting the employee to do this. There are also a number of problems involved with permitting an employee to work from home unsupervised.

Once the employee has exhausted all of her hours of FMLA, she must be returned to her regular full-time job.

But just to reiterate, an employee who is working is absolutely not on FMLA for the hours worked. No exceptions.