We have an employee that will be taking 6-8 weeks of ST disability for pregnancy and then using the remaining 4-6 weeks of FMLA leave. She works from home regularly as it is and has been doing so for over 2 years. Is it illegal to ask her to still check email and work a few hours a week during any of this leave?
You absolutely, positively cannot require that this employee work while she is on FMLA or short term disability. It is unreasonable to expect an employee on continuous FMLA or STD to work during that time. Working is a violation of FMLA and may be fraud. Checking email or answering work-related phone calls is work, and the employee must be compensated appropriately for it. She cannot do it while on FMLA or short term disability.
In order to qualify for short term disability, the employees doctor must certify that she is physically unable to work. If you try to force her to work during this time, you will be requiring the employee to commit fraud — and you will be committing fraud yourself. Besides, this is very unwise. If the employee or her baby should suffer complications for any reason due to working, you would be financially liable for those complications. It is very unwise for an employer to allow any employee to work unless she has a doctors release to do so.
This may very well be illegal discrimination based on sex or pregnancy, since we doubt you would ask a male employee on STD for a heart attack or stroke to do a few hours of work from home.
The FMLA is a slightly different matter. Once the employee has been released to go back to work by her doctor, she is still entitled to 6 -8 weeks of unpaid FMLA, as you have noted. The employee can take FMLA on a continuous basis to care for her baby, and if she wants to do so you cannot deny her this right.
However, you could try to negotiate a different arrangement with the employee. If the employee normally works 40 hours per week, you could offer to let her work 5 hours per week from home and take 35 hours per week of intermittent FMLA. This means that she would qualify for 9 weeks of FMLA plus a few days, rather than 8 weeks, and would receive some income during this period. She might agree to this arrangement because it would delay the date when she must return to work full time.
Note that legally, an employee who is working for an hour is not on FMLA for that hour, by law. If you use this arrangement, you must carefully track every hour the employee works and exclude it from her FMLA time.
Also be aware that under state and federal minimum wage laws, the employee must be paid for any time she works. If she is hourly, she is entitled to payment for every hour or portion thereof that she works. If she is exempt, she is entitled to her full days salary on any day in which she spends even 5 minutes checking email. (If she is on unpaid FMLA, this time can be prorated. She can work 3 hours and be paid for 3 hours.)
We will say do not count on this FMLA arrangement. Many new mothers are completely overwhelmed by the babies demands and not able to work for 8 weeks or so afterwards, which is the intention of FMLA. Also realize that this employee is legally entitled to continuous FMLA. You cannot punish her for not working during that period.
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