Working at home while on FMLA

Galestorm

Where can I find the law that restricts working while on leave? I have just spoken with an employee who has been on leave for about 6 weeks. She states her husband said she's working harder than when she was at work. I asked her what she was doing and she said grading papers and writing lesson plans. I explained to her she is not supposed to be working while on leave. She states her department is short handed and she's just helping out and doesn't want to make waves. Any assistance I can get will be helpful.

Theresa Gegen TX

I think the issue is payday law. If she is working, she must be paid. The employer that is allowing her to continue working has to pay her. The employer can tell her that she is not allowed to continue working on leave. Then her supervisor (or whoever is accepting the benefits of her work while on leave) should be counseled. If she is working, she should not be burning up her FMLA leave. This could be an FMLA violation.

Good Luck!

Galestorm

Thanks for your reply! Does this apply to exempt employees as well?

Theresa Gegen TX

If they are exempt and you have them working any hours, you may have to pay them for an entire week. The FMLA does provide some sort of exception for intermittant leave, but since this person is not on intermittant leave, you may be out of luck on that.

Good Luck!

Dan Krawczyk

For an exempt employee, would it be legal to change their status to non-exempt during this period and pay them for the time they work, and charge them leave for when not working?

KP68

Does this apply (working from home and potentially violating FMLA) if the employee is taking leave for a sick parent or child?

Rockie

My understanding of the law is if they are on FMLA, they should not be performing any work for the company. If they do, they must be paid and therefore must be taken off of FMLA.

This doesn't matter is it's intermittant leave or not.

We had a case of an employee who had a baby and wanted to use her 12 weeks of FMLA. She quickly realized she couldn't be without a paycheck for that period of time. She also didn't want to take her baby to day care that young. We worked out a deal with her where we allowed her to work at home (we had some assignments that could easily be done at home) and took her off of FMLA. Her FMLA stopped at this point and her active status was reinstated.

Employees can't both be on FMLA and working for you.

Now...there is a stipulation somewhere in the law that the employee may not be able to perform duties for you, but they are not restricted from working for someone else during the period they are on FMLA leave from your company. Example: Employee works for you, but they have to be able to walk from department to department. They have hip replacement surgery and can't do their job. They go on FMLA from your company. But....they could do something like take in typing at home or something where they could perform sedentary work for another company. This is perfectly legal for them to do this.

patb

Working at home during FMLA falls under the Intermittent Leave requirements of the Act. Regardless of work site, this employee is working part of her regular work week and you are paying her for it. (Word to the wise - check and see if you have to register her home as a work site with your Bureau of Worker's Compensation or insurance carrier - in OH it's required).

If she is salaried you can change her to a non exempt status and pay her at 1/2080 of her regular annual wage for any hours under 40. If she were to go over 40 you'd have to pay OT. She needs to submit a record of her time. The difference between the hours she works and her regularly scheduled hours can be charged to FMLA. You cannot pay her AND charge her with FMLA for the same hours. Example: if she turns in a time sheet for 15 hours you can't pay her the 15 hours and charge her with 40 hours worth of leave.

Our org. is 99% female and it's nothing for me to have 4 or 5 employees out at the same time on FMLA...we've had several instances where we've asked or allowed employees to work part time while on FMLA.

Here's the address for intermittent leave on the DOL's web site if you'd like to check it out for yourself:
[url]http://www.dol.gov/elaws/esa/fmla/er3.asp[/url]