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An employee needs to be out 2 days for a surgery but then will need to work from home for 2 weeks while in recovery. How do you track that for FMLA Leave? Or is it just an accommodation?
Thank you for your inquiry regarding application of FMLA to an employee who needs to miss two days of work for surgery and who will then work from home during recovery.
FMLA leave is available for an employee’s own “serious health condition.” This may include an illness, injury, impairment, or physical or mental condition that requires either:
- Inpatient care or
- Continuing treatment by a healthcare provider.
If an employee’s condition requires inpatient care, such as an overnight stay in a hospital, hospice, or residential care facility, then the employee’s condition will automatically be considered a serious health condition even if it does not require three full, consecutive days of incapacity. If the surgery does not require inpatient care, then the condition may not qualify as a serious health condition under FMLA.
More in-depth information on qualifying serious health conditions is available in this guidance document on HR.BLR.com.
With regard to the employee working from home after the surgery, if the employee is working from home, then any time spent working would not be considered FMLA leave (since the employee would be working and would not actually be on leave). The employee would simply be working from home during recovery.
However, if the employee is also working a reduced schedule or is taking intermittent leave during this two week period, then the time not worked (FMLA leave time) would be accounted for using the shortest increment that the employer uses when measuring other types of leave. The increment used may not be more than one hour, though. (In other words, if the employer requires PTO to be taken in half-day blocks, that increment may not be used for FMLA. FMLA time would need to be calculated in one-hour increments or smaller).
More information on tracking intermittent and reduced schedule leave is available on the FMLA topical analysis page.
As a final note, if the employee is working during his or her recovery period, be sure that this is because the employee wants or prefers to do so and not because he or she feels it is a necessity or requirement. The purpose of FMLA is to allow employees to take time away from work in order to heal and obtain treatment, so the employee should not feel required to work from home if it would detract from his or her recovery.
On one hand, technological advances have vastly improved employees’ ability to work from home and continue to earn wages while recovering from medical treatments. On the other hand, employees should understand that medical leave is something to which they are entitled, so they should not feel required to return to work sooner than practical, else the employer could be found to have interfered with the employee’s right to FMLA.