SICK LEAVE, FMLA, & REMOTE EMPLOYEES
Most of the time, even if your remote employee is sick, they’ll want to continue to work to avoid burning through sick leave. That’s ok if the work can be done well and the employee is not further compromising his health. But you should always encourage your remote employees to use sick and personal leave, just like an in-person employee would. You don’t need to adopt a militant approach to this issue.
However, a few polite reminders can go a long way in helping your company avoid being placed in an awkward position where it is facing the allegation that employees were pressured to work while sick or that the company does not care about employee health or obligations under the Family Medical Leave Act.
Encouraging your employees to use sick leave when sick is especially important if your policies provide a general bank of leave that has to be paid out when an employee leaves, retires, or reaches the end of the year. You don’t want to pay an employee for half-hearted work while they are sick and then find yourself in a position where you have to pay out unused sick leave a few months later.
You also need to consider that state and local governments love to tinker with sick leave laws. That means sick leave is one of the easiest places for stingy employers to get tripped up. What’s mandated in one state is ignored in another. What’s required for certain size companies is not for others. There are plenty of ways to mess it up. So make sure you add sick leave accumulation to your annual audit list. Even if you have it figured out in one year, there’s a good chance a law will pass that will put everything on its head. That means that, ultimately, the safest course of action from a compliance standpoint is to be generous with your sick leave policies. You’ll rarely get in trouble with the courts for going above and beyond what the law requires.
The good news is that even if you’re generous and allow for a payout, you don’t have to let your generosity get out of control. Most states allow employers to put a reasonable cap on the number of sick hours that can accumulate for employees. This makes sense. If an employee could endlessly earn hours, he could take a several-month extended cruise claiming it is for mental health. You don’t want to create an incentive for bad behavior. So think about whether you want to put a cap on sick leave accumulation. Then, keep tabs on it, make sure that the cap complies with laws in your employee’s jurisdiction, and encourage the employee to use it.
It would be best if you also thought about what you want to do with those unused sick leave hours. What would be fair for your departing employees regarding unused sick leave? Would you prefer unused sick leave to be paid out at the end of the year? Or do you want, to the extent the law will allow, to have no payouts for sick leave at year-end or termination?
Most jurisdictions allow flexibility when it comes to paying out sick leave. So what you want to do - in most jurisdictions - should boil down to what you think is fair. Remember that if you adopt a policy allowing employees to accumulate and get a payout for unused sick leave, you’ll encourage employees to work sick. If you don’t let the employees roll over sick leave and don’t provide a payout, you’re incentivizing your employee to use as much sick time as possible before putting in or her two weeks' notice, even if they’re not sick. The better course of action is usually somewhere in the middle.
One middle-ground approach is to put a reasonable cap on sick leave accumulation and then pay out a fair percentage at the end of employment, as long as the employee gives two weeks of written notice. This incentivizes not unnecessarily burning through sick leave, it encourages providing enough before an employee departure notice to smoothen the transition period, and it might leave a better taste in your employee’s mouth if you ever want to recruit the employee back in the future. Whatever approach you take, make sure your policy will work with state and local law.
But most importantly, when it comes to sick leave, employers with remote employees need to ensure they don’t forget their FMLA obligations. The FMLA provides protection for employees caring for a family member with a serious s health condition and those who need to take time off for their serious health condition.
The FMLA provides a right to unpaid leave. For most situations, it’s 12 weeks of unpaid leave (though you generally can require an employee to use paid time off and sick leave at the same time that FMLA is used so that there is some pay coming in). While on FMLA, the employee is generally required to chip in and pay their portion of the healthcare premium to retain healthcare coverage. While the FMLA does not create a financial windfall for most employees, it’s a powerful law for protecting careers. It’s also easy to trip up on its technicalities. You must ensure you’re providing your employees with the proper paperwork within the correct timeframes whenever there is potential FMLA eligibility.
Many companies with remote employees need to remember FMLA obligations for remote employees. In part, this is because human resources professionals remember that for Employees to be FMLA eligible, they must have worked for their employer at least 1,250 hours over the past 12 months and work at a location where the company employs 50 or more employees within 75 miles. Human resource professionals often assume that a remote employee is not FMLA eligible because they are not within 75 miles of an office location, let alone one with 50 or more employees. Unfortunately for employers, it’s not that simple.
The Department of Labor has interpreted the FMLA to mean that for those employees with no fixed site (i.e., remote employees), the worksite is the site to which the employee is assigned as their home base. This means that you might be headquartered in Texas and have 50 employees from the east and west coast who report to the corporate office in Texas. The FMLA still protects those employees because they are considered to be based out of the home office. So, please don’t assume the FMLA does not cover your employees when it comes to remote employees. They might be protected even if they are hundreds or even thousands of miles away from your corporate headquarters. Ensure you thoroughly analyze each leave situation, provide the proper paperwork, and grant FMLA where appropriate. You don’t want to end up in court on the other end of an FMLA claim.
