The Family and Medical Leave Act does not require employers to allow qualified employees to work remotely. While such requests may fall under the Americans with Disabilities Act’s reasonable accommodation obligation, the FMLA only provides leave for employees who are unable to work whether remotely or in person. However, the FMLA also prohibits employers from interfering with benefits provided to the workforce. In a recent case, the Second Circuit Court of Appeals used this principle to determine that attempts to restrict remote work by an employee taking FMLA leave constituted such interference.

In Kemp v. Regeneron Pharmaceuticals Inc., the plaintiff had taken FMLA leave for a serious health condition. She alleged that her manager had advised her not to work remotely because of her absences, and to use additional FMLA leave or paid time off if she needed to be out of the office. The plaintiff later retired and sued, claiming that the employer had interfered with her FMLA rights by restricting a benefit made available to other employees.

The Second Circuit agreed, finding that the FMLA’s plain language prohibits employers from interfering with their use of employee benefits. Even though the employer never denied any FMLA request or directly prohibited the plaintiff from working remotely, discouraging such use in and of itself constitutes FMLA interference. While the company was not obligated to allow remote work in non-ADA situations, by offering this benefit, it was required to allow full use by employees who also took FMLA leave.  Despite this holding, the court affirmed dismissal of the lawsuit based on the employer’s statute of limitations arguments.

When employees use FMLA leave, employers sometimes expect the employee to make up hours missed or otherwise compensate for the effects of their absences from the workplace. Employers should recognize that FMLA leave is an entitlement, meaning that the employee cannot be penalized for their use of such leave time. Based on this case, even suggestions that an employee restrict their use of a benefit available to other workers will be sufficient to support a legal claim for FMLA interference.

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