Seriously? An FMLA Series, Episode 3

Telecommuting – FMLA for WFH! WTH? – Part 2

Do you have even one employee who telecommutes part-time or full-time, or occasionally logs on from home, at night, when they’re sick, or when they are home for the day because their kid got whatever virus is being passed around the local school system? If yes, sit down. We need to talk. If no, move along, nothing to see here.

Any good mystery has to address Who, What, Why, Where, and When. In part 1, of the WFH series, we covered the ‘Who,’ the ‘What’ and the ‘Where.’ Now, you should be able to nail down employees who are eligible. You know what they receive for federal FMLA, based on where they report into; and which state FMLA laws may (or may not) apply.

That still leaves us with ‘Why and When.’ It’s the management of an employee who basically lives in their office and works in their jammies! No good FMLA topic would be complete without multiple twists, and, of course, this has The Basics and the ‘Ya, but’ factors.

The Basics:
The employer bears full responsibility for proving if an employee has or has not worked. This concept comes into play for two major issues:

  1. What is ‘working’ for determining 1250 (or other state #)?
  2. What fraction of the work week was used and when?

It is defined (825.105a) that ‘Mere knowledge by an employer of work done for the employer by another is sufficient to create the employment relationship…’ It is the employer’s responsibility to maintain records for hours worked per pay period (825.500). If the employee shows that they logged on and sent e-mails during a period of time that the employer has designated as an absence, then the burden of proof that they did not work is lost. If after terminating this employee, you walk into a court saying “we told them not to log on,” you may end up leaving there feeling like the Scarecrow after the flying monkeys incident. Your insides will be strewn about, your employee will be flying off with your ruby slippers, and you’ll be left there with nothing to do but whistle the last few verses of “If I Only Had A Brain.”

The ‘Ya, but’:
Telecommuting is generally considered a privilege, not a right. However, if you already have employees who are telecommuting successfully, in many positions, the line between privilege and right will start to blur when the FMLA and the ever loved ADA come into play. I’m not going to go into great detail regarding telecommuting being an accommodation, as it is a significant gray area. But note, that, if you already have any portion of your workforce in WFH scenarios, it will be near impossible to argue why you can’t allow telecommuting as a reasonable accommodation. So prepare to acquiesce when that request comes… and it will come. Here is a little light reading on the 6th circuit court and the EEOC opinion on the subject.

I do have some good news. There are steps you can take to minimize your risk in this very gray area of management. First is to create (or review and update) a very clearly defined policy for the telecommuting arrangements.

  1. If possible, disable employee access to your systems during extended periods of absence. These steps will provide a safeguard for maintaining reasonably accurate records for actual hours absent – which is truly just as important as maintaining records of hours worked.
  2. A secondary step would be to have the ability to monitor e-mail or other electronic traffic during periods of absence and access such information prior to taking any adverse action against an employee who may have job protections under federal or state FMLA.
  3. No matter what the case, the best thing you can ever do in these situations is to maintain open, regular, interactive communication that is well documented. I won’t bother with the old cliché about what happens when you assume. Before you do something you can’t take back, triple check documentation, communication, and take advantage of the technology you already have in place for monitoring e-mails. Given you probably paid a king’s ransom to have installed, you should get your money’s worth.
  4. Finally, since it’s probable that your resources are low,, use FMLA software to ensure that your record keeping is compliant with federal regulations.

Yes, Seriously! Telecommuting is not just a fad. Unlike skinny jeans, it’s here to stay, so you might as well come to terms with how to live with it.