An Employee Is Not Entitled to Remote Work in Lieu of FMLA to Care for a Child.

Category: Federal & State Compliance

Written by Fiona W. Ong from Shawe Rosenthal LLP on September 27, 2024

The Family and Medical Leave Act provides leave, and not other accommodations, to care for a child, as the U.S. Court of Appeals for the Second Circuit recently confirmed.

In Kemp v. Regeneron Pharmaceuticals, Inc., following several other medical leaves for herself and for caring for her child, who had a serious medical condition, the employee spent most of a month working remotely while caring for her child. When she returned, her managers expressed concern about the amount of time the employee had spent out of the office, and she was limited to working remotely only one day per week, even though others regularly worked from home. She was also encouraged to speak to Human Resources about using paid time off or intermittent FMLA leave in place of remote work for her time away from the office. The employee subsequently retired. She then sued, alleging that the Company had violated her FMLA rights, among other things. The federal district court granted summary judgment for the employer, finding that employee’s claims failed as a matter of law.

On appeal, the Second Circuit affirmed judgment for the employer. The Second Circuit held “that an employer can violate the FMLA merely by interfering with the employee’s benefits under the FMLA without actually denying the employee’s request for those benefits.” In this case, however, the employee argued that the Company substantially limited her ability to work remotely and punished her for doing so. But, as the Second Circuit noted, the FMLA protects an employee’s ability to take leave, but “does not entitle employees to work remotely or make it unlawful for an employer to punish an employee who works remotely.” The Second Circuit further observed that “[r]emote work may be another form of accommodation, but it is not ‘leave’ within the meaning of the [FMLA].”

The good news for employers is that employees do not have a right under FMLA to work remotely. Of course, an employee may be entitled to remote work as a reasonable accommodation for their own disability under the Americans with Disabilities Act, and an employer will need to engage in the interactive discussion to determine if that is so. But the ADA does not provide reasonable accommodations to care for a family member.