Benefits, Leave Management, Policy, and Compliance

Can You Offer Telework in Lieu of Leave?

When an employee requests time off, it may seem like a great solution to offer a telework arrangement instead. And sometimes, that may be allowed, according to a new report.

Telecommuting

In Littler Mendelson’s Telework Under the ADA & Other Nondiscrimination Laws, the report’s authors suggest that telecommuting can prove a creative solution for both parties: the employee still receives a paycheck and the employer doesn’t temporarily lose an employee. The offer, however, must be made with great care to avoid a violation of federal employment law.

What the Law Requires

When an employee requests leave and you want to offer telework instead, consider a few things.

Family and Medical Leave Act (FMLA). First, if the employee is requesting time off for an FMLA-qualifying reason (including caregiver leave), the employer generally cannot deny the request if the employee is eligible for the leave. (The same applies to any relevant state law or other applicable requirements.) Employers also should note that even a suggestion of telework as a substitute for FMLA leave could be seen as discouraging the employee from exercising his FMLA rights.

A federal district court last year, for example, declined to dismiss the FMLA interference claim of an employee who accepted a telework arrangement in lieu of leave to care for her son. After she began working remotely, the employer fired her for lack of communication; she sued, arguing that if she had been allowed to take leave as she requested, there would have been no communication expectation. The employer eventually won, but not without spending 2 years litigating the case (Alexander v. Carolina Fire Control, Inc., No. 1:14-cv-74 (M.D.N.C. July 24, 2015)).

Americans with Disabilities Act (ADA). The ADA, however, allows employer to choose any effective accommodation. This means that if, for example, an employee who is not eligible for FMLA leave requests time off, an employer may be able to offer telework instead.

And if the employee specifically requests permission to work from home, that’s all the more reason to consider it. “Even if an employer does not currently have a telework policy, it has a duty under the ADA to engage in an interactive process with an employee seeking such an accommodation—and vet the possibility,” the report says.

Caregiver Leave. Telework can be a particularly effective option for employees with caregiving responsibilities, according to Littler. While employees eligible for FMLA leave must be permitted to take it and cannot be discouraged from doing so, “[m]aking telecommuting available to employees in appropriate circumstances may foreclose the need for an employee to take extended and disruptive leave under applicable leave laws—and provide a better alternative for the employee and employer alike,” the report says.

Granting a telecommuting arrangement to employees with caregiving responsibilities also may have the effect of reducing discrimination claims, the report says. In EEOC’s Employer Best Practices for Workers with Caregiving Responsibilities, the commission advocates for the adoption of flexible workplace policies as a way for employers to reduce claims of discrimination against caregivers.

The report reminds employers, however, that employees must be able to ask for flexible arrangements without facing disparate treatment or retaliation. For example, it notes that a caregiver to a person with a disability denied the ability to telecommute could have a disparate treatment claim if other employees without caregiving responsibilities are allowed to telecommute.

The same goes for pregnant employees: “[T]o the extent an employer permits other employees to telecommute but refuses to grant a pregnant employee’s request to telecommute because, for example, she will be leaving on maternity leave anyway, such a decision could be subject to challenge on grounds it was based on that employee’s family or caregiver responsibilities.”

When and How to Offer Telework

If an employer wants to inform an employee requesting leave that telework is an available option, it must proceed very carefully. “What you don’t want an employer to do is have an employee come to you and request a leave for a medical condition … and immediately say, ‘How about you just work from home?’” said Corinn Jackson, counsel with Littler and one of the report’s authors.

“If someone is requesting leave, you want to make sure that you’re not responding to that request with an offer to continue working if leave is the right fit for that situation,” she told HR Daily Advisor. “You need to evaluate on a case-by-case basis,” she said.

What you can do is be open to accommodation discussions. For example, a telework offer may make sense when an employee requests such an arrangement or when her leave is expiring but she is not ready to return to work, Jackson said. But you always want to make sure that you’re not pushing a telework accommodation when leave might be required, she added.

Caregiving is really when you can explore telework as a way to meet everyone’s needs, Jackson said; there can be fewer landmines than with an employee’s own medical leave. However, you need to have policies in place ahead of time, she said, recommending that the HR and legal departments work together to establish telecommuting policies in advance.

While employers must deal with each situation on a case-by-case basis, you do need guidance in place ahead of time, Jackson said. “[Y]ou need something to refer to, to ensure you’re not impacting any group unfairly,” Jackson said. “It’s going to help you with the fairness that you’re trying to achieve.”

‘The Business Case’

Telework arrangements often make sense for business, according to the report. Litter said it believes employees who are permitted to telecommute are more engaged, more motivated, and more loyal to their employers.

But, there’s a cost, the report says. Employers with remote workers may save money on overhead costs but it takes far more time to manage telecommuting employees, according to Littler. “Both managers of telecommuters and the telecommuting employees themselves have to work hard at staying connected and being visible to one another. They also have to work harder at communicating with one another when the typical modes of office communication no longer are at their disposal.” Production also can drop due to a lack of oversight, Litter says, and remote employees often report a lack of “synergy” or teamwork.

So what’s the answer? Littler says you’ll have to weigh the needs of the parties involved against the legal and practical risks. But if you do decide to offer telework, “[t]he key is to ensure that individuals are set up for success having the best work spaces and workstyles to be productive and engaged and therefore, put forth their best work.”

Kate TornoneKate McGovern Tornone is an editor at BLR. She has almost 10 years’ experience covering a variety of employment law topics and currently writes for HR.ComplianceExpert.com and HR.BLR.com. Before coming to BLR, she served as editor of Thompson Information Services’ ADA and FLSA publications, co-authored the Guide to the ADA Amendments Act, and published several special reports. She graduated from The Catholic University of America in Washington, D.C., with a B.A. in media studies.