Sick Leave, FMLA, and Remote Employees

Your remote employees don’t spread illness in the office. Because of this, it’s sometimes easy to forget about your remote employees when it comes to sick leave and FMLA obligations. But most of the time, you have the same obligations to your remote employees as your in-person employees. There are also some unique considerations for remote employees regarding sick leave and the FMLA. 

Let’s look at some of the most critical issues to consider. 

Encourage Remote Employees to Use Sick Leave

Many remote employees dismiss or diminish their health issues because they prefer to avoid burning through sick leave. If the work is still done well, it’s probably not a big deal if the employee is dealing with a minor illness. But you need to be careful about not putting your company in a position where it might face allegations that it doesn’t care about employee health or ignored medical or sick leave laws. The evidence is clear that employees who work while sick are more susceptible to burnout and may prolong or worsen their illness. So encourage your remote employees to use sick leave and FMLA when appropriate. It’s good for your business and shows compliance with federal and state laws. 

Double Check State & Local Sick Leave Obligations for Remote Employees

State and local governments love tinkering with sick leave laws. That means sick leave is one of the most common places for stingy employers to get tripped up. What’s mandated in one state is not in another. What’s required for certain size companies is not for others. In more politically progressive states, like New Jersey, many employees earn one hour of sick leave for 30 hours worked. When you have remote employees, double-check that you are correctly handling sick leave accumulation.

Consider a Cap on Sick Leave to Avoid Getting Burned 

Most states allow employers to put a reasonable cap on the number of sick leave hours employees can accumulate. You’ll need to make sure the policy is legal for each employee. But for many employers, a reasonable cap makes sense.  

If an employee can endlessly accumulate sick leave, he could take a several-month extended cruise for “mental health” before putting in his two weeks of notice. You might be ok with that. But if you’re not, a cap likely makes sense, especially for remote employees working in states with more generous sick leave accrual laws. 

Consider if it makes sense to pay out unused sick days (or a percentage of unused sick days) at the end of employment. Paying all or a percentage of sick days at the end of employment encourages your employee to unnecessarily avoid burning through sick leave. If you take this route, it’s generally reasonable to require an employee to provide two weeks of written notice before the final day of employment to be eligible for the payout. This caveat incentivizes a smooth transition. Most jurisdictions allow flexibility when paying out sick leave at the end of employment. So consider if such a policy makes sense for your business. 

Remote Employees & the FMLA 

The FMLA provides a right to unpaid leave. For most situations, it’s 12 weeks of unpaid leave. A company can generally require an employee to use paid time off and sick leave when FMLA is used.

While on FMLA, the employee may be required to pay their portion of the healthcare premium to retain healthcare coverage. While the FMLA does not create a financial windfall for employees, it’s a powerful law for protecting employees’ careers and health insurance coverage during times of medical and family need. But as an employer, it’s easy to trip up on the FMLA’s technicalities. You must ensure you provide employees with the correct forms within the right time frames whenever there is potential FMLA eligibility. 

Many companies with remote employees forget about the FMLA when it comes to remote employees. In part, this is because human resources professionals remember that for most employees to be FMLA eligible, they must work at least 1,250 hours over the past 12 months for their employer and must have worked at a location where the company employs 50 or more employees within a 75-mile radius. 

Human resource professionals often assume that a remote employee is not FMLA eligible because he is not within 75 miles of an office location, let alone one with 50 or more employees. Unfortunately for unassuming employers, it’s not that simple.

The Department of Labor has interpreted the FMLA to protect remote employees if their company home base meets the FMLA’s qualifications of a covered worksite and the employee otherwise meets the qualifications. This means that your company might be headquartered in Texas and have 65 East and West Coast employees who report to the corporate office in Austin, Texas. The FMLA still probably protects those employees if they have worked at least 1,250 hours over the past 12 months for that employer because they are considered to be based out of the company’s corporate headquarters. 

So when it comes to remote employees, don’t assume your employees are not covered by the FMLA just because they work more than 75 miles away. They might be protected even if they are hundreds or even thousands of miles away from your corporate headquarters unless the courts or Department of Labor begin to interpret the law differently. 

Remote Employees & State FMLA Equivalents

Finally, even if you’re a smaller employer not subject to the FMLA, you still need to check the laws in the employee’s jurisdiction. Many states have passed their own more generous FMLA-type laws. Your employee may be entitled to leave under those laws. So be sure to take an extra step of due diligence for your remote employees.