We have an exempt employee going out on FMLA for about 7 weeks. The employee currently has remote access and can work from home. Are we violating FMLA if we allow this exempt employee to have access to emails and his virtual desktop or should we get a doctor’s release that says the employee can work from home?
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The short answer to your question is that so long as the employee and employer have an arrangement where the employee voluntarily agrees to work from home during the period he or she is using FMLA leave, the arrangement would not violate the FMLA. Provided, however, the hours worked from home are not counted against the employee’s FMLA leave entitlement. This means the employee should keep track and report hours actually worked each day, and then the remainder of the regular work hours would be counted as FMLA.
For more information, take a look at our online guide on page 500-5. It provides the following:
Work from Home Is Not FMLA Leave
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 coworkers 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.
They must also take care that if paid leave is being substituted for unpaid FMLA leave, the paid leave also may not be docked for hours worked from home.