What does an employer do when an employee who is on leave wants to start working remotely? Several considerations are in order, including whether the job lends itself to being performed remotely, if the employee has a good work ethic, and whether medical authorization supports remote work.
Some employers tell employees that they should not perform any work while on Family and Medical Leave Act (FMLA) “block” leave, as opposed to intermittent leave or reduced schedule leave, said Robin Shea, an attorney with Constangy, Brooks, Smith & Prophete in Winston-Salem, N.C. “Block leave” is a single, uninterrupted period of time away from work.
Some employers cut off their access to the company’s system during the FMLA leave period, she added. “This is a very clean way to avoid any issues.”
But if the FMLA leave is intermittent or on a reduced schedule, the employer would have to allow some work during the nonleave time, unless the job cannot be performed remotely, Shea said.
“It is unlawful to force an employee to take more FMLA leave than he or she really needs, or to charge the employee for FMLA time when the employee is working,” she emphasized.
One way to handle these situations, Shea noted, is if the FMLA medical certification is recent and puts the employee out on block leave for the employer to deny the request to work based on current medical certification. “That won’t necessarily prevent the employee from getting a new medical certification, but it’s a start,” she...
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