HR Tip: Two important decisions regarding remote workers

FMLA

The rise of remote work has wreaked havoc on how an FMLA-covered employer determines whether its remote employees are eligible for FMLA leave. Jeff Novak, author of the highly regarded FMLA Insights blog, points out that the regulations, developed when brick-and-mortar employment reigned, simply have not kept up with the realities of today's workplace.

One of the eligibility requirements for FMLA is that the employee must work at a worksite with 50 employees located within 75 (surface) miles of each other. In the case Landgrave v. ForTec Medical, a remote surgical laser technician sued ForTec for denying her FMLA request and terminating her employment while she cared for her mother.

The dispute centered on whether Landgrave was an "eligible employee." Landgrave contended that her worksite was ForTec's Ohio headquarters, which employed over 50 individuals, thereby meeting FMLA eligibility criteria. ForTec argued her worksite was in Texas, where she resided, her supervisor was based, and where the company had fewer than 50 employees within a 75-mile radius. The court refused to dismiss the FMLA claims, finding it impossible to determine the worksite, and instead placed the decision in the hands of a jury.

Novak points out that employers have a few options:

• Given the difficulty in applying the 50/75 rule, many employers have removed this element as an eligibility requirement, which naturally broadens FMLA eligibility for employees.
• Keep searching up the chain until you can assign the employee to a corporate worksite. "For instance, in Vanessa's case, the employer would look up the corporate chain until it found the Ohio HQ to assign as her worksite."
• Do a better job of defining the location from which the employee receives assignments and the location to which they report. In the Landgrave case, it was not clear whether her supervisor assigned her meaningful work or reviewed her work.

Minnesota Human Rights Act (MHRA)

In Jan Kuklenski v. Medtronic USA, Inc., an employee worked remotely in states other than Minnesota throughout her two-year employment and never resided in Minnesota. She took a three-month medical leave after surgery but was denied an extension for another three months. The company terminated her when she returned.

She sued Medtronic, alleging that the company refused to provide an accommodation in violation of the Minnesota Human Rights Act (MHRA). The 8th U.S. Circuit Court of Appeals granted summary judgment to Medtronic, finding she did not meet the statutory definition of an "employee" under the MHRA. The act defines an employee as "an individual who is employed by an employer and who resides or works in this state." The court concluded that "works in this state" means being physically present and that virtual work is not a "physical presence."

While this decision primarily impacts employers operating in Minnesota, the law firm, Fisher Phillips points out its implications may extend beyond the state. It recommends employers should:

• Create clear and consistent remote and hybrid work policies
• Periodically ask employees to review and update their contact information
• Develop a multistate compliance strategy