Frequently, an employee who is physically unable to come to work will perform some work for the employer from home. This has become more and more common as technological advances have made it easier for workers to perform work and communicate with co-workers from any distance.
Work performed from home does not count against an employee’s 12-week leave allotment. Therefore, if an employee on leave is performing some work tasks from home, the hours spent performing those tasks must be deducted from any calculation of leave used.
DOL has clarified that missed overtime must be counted against the employee’s FMLA leave entitlement if the employee would otherwise have been required to report for duty, but for the taking of FMLA leave.
Example: If an employee would normally be required to work for 48 hours in a particular week, but due to a serious health condition, the employee is unable to work more than 40 hours that week, the employee would utilize 8 hours of FMLA-protected leave out of the 48-hour workweek.
(Voluntary overtime hours that an employee does not work due to a serious health condition may not be counted against the employee’s FMLA leave entitlement.)
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State mandated paid leave provisions are gaining popularity. As a result, employers should confirm the status of their state leave laws to determine if any paid leave provisions exist, and ensure that their policies and practices take both state and federal leave law into account. For example:
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