If an employee is on a fmla leave for a spouse, can he/she volunteer to do work from home without approval?
This situation is a minefield, and we suggest you clarify this with the employee ASAP. When your employee works from home she is working. Under both federal and state minimum wage laws, the employee must be paid when she is working. This is true even if the employee is working without your knowledge or permission. Generally speaking, is not legal for an employee to volunteer, even if she wants to. You must pay the employee, even for checking email or taking work-related phone calls.
Even more importantly, the federal FMLA regulations make it extremely clear that no employee who is working is ever on FMLA. Therefore, if you permit this employee to work from home, she is now on intermittent FMLA. Whether the employee is exempt or hourly, you must track every hour she works and pay her accordingly. You must also accurately track the hours of FMLA, to ensure that the employee receives her full 12 weeks allotment.
Suppose Cindy is on FMLA to care for a spouse who has cancer. Cindy normally works 8 hours per day when not on FMLA. On Tuesday, Cindy works from home for two hours. Cindy must be paid for those two hours, and she has taken 6 hours of FMLA that day.
No employee should ever work without approval. This is a major violation of the federal FLSA, as well as state minimum wage and wage payment laws. In addition, it may be depriving the employee of her rights to unpaid time off under FMLA. If you have an employee who is working from home without approval, she should be disciplined or terminated.
If you choose to allow this employee to work from home in the future, and take intermittent FMLA, then you need to set up an accurate way to track the time she is working.
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