The FMLA doesn’t entitle employees to remote work

Employer limits her remote work schedule

Between Denise being out while her daughter had a 15-day hospital stay, and working remotely, her supervisors voiced their concerns about how long Denise had been away. They limited Denise to one day of remote work per week, even though others in the department regularly worked from home. She could still take FMLA leave as needed.

In fact, her supervisors encouraged Denise to speak with someone in HR about using paid time off or intermittent FMLA leave rather than working remotely. She continued to take the leave.

About four months later, however, Denise decided to retire, in part spurred by the company’s refusal to let her work remotely. She also sued, claiming that the company violated her FMLA rights by not allowing her to work remotely more than one day per week.

Employer prevails in court

While Denise acknowledged that the company never denied her formal request for FMLA leave, she argued that it discouraged her from taking FMLA leave. She argued further that the limitations the company placed on her remote work unlawfully interfered with the exercise of her rights under the FMLA.

The court didn’t buy Denise’s argument. It held that the FMLA protected Denise’s right to take leave, but it did not entitle her to work remotely. Nor does it make it unlawful for employers to discipline employees who work remotely against employers’ wishes. Remote work may be another form of accommodation, perhaps under the Americans with Disabilities Act (ADA), but it is not “leave” within the meaning of the FMLA.

Kemp v. Regeneron Pharmaceuticals, Inc., Second Circuit Court of Appeals, No. 23-174-cv, September 9, 2024.

Key to remember: The FMLA doesn’t give employees the right to work remotely. It could, however, be a reasonable accommodation under other laws, such as the ADA.