How Increased Workplace Flexibility Impacts Family and Medical Leave

May 13, 2022

by Sarah Perez, Esq., Perez Morris

We have heard a lot about hybrid and remote work coming out of the pandemic. Most companies, and especially those in professional services industries, have found that not only can efficient work be done from home or places other than the office, but often it’s better quality for a variety of reasons.

One of these reasons is the ability to better balance self-care and family time with work. For companies that are able to embrace these options, there is also enhanced trust built into the relationship between employee and employer, as the employer is trusting the employee to be a professional and continue to deliver. A less-discussed topic, though, is that of the slow evolution of what time away from the office looks like in light of the fact that this “work from anywhere” culture is so prevalent.

For many, there’s no real distinction between work and home. These lines are particularly blurry when employees are on a prolonged time away from the office, such as for maternity or parental leave, although this fuzziness has also creeped into vacation time. When employees reach a comfort and routine having work and home lives seamlessly blended, it’s more difficult to disconnect. They look and feel like one and the same. Said another way, working from a location outside the office with your family around is just another day in the office for many.

From a legal perspective, there are still certain types of leave that need to be taken without work creeping in. For example, the Family and Medical Leave Act still requires that companies with more than 50 employees within a 75-mile radius offer up to 12 weeks unpaid leave for an employees’ own serious health condition or to care for a family member. Employers cannot interfere with eligible employees taking this leave and also cannot retaliate against any employee for taking leave. It is tempting for employers and employees alike to want to stay connected to ongoing projects or issues as they arise, even while the employee is on protected leave. However, this may give rise to an FMLA interference claim. Similarly, although distinct, if an employee declines to stay plugged into work remotely while on leave and is disciplined or overlooked for a promotion or opportunity upon return, there may be a risk the employee feels retaliated against.

To combat this risk, managers need to be re-trained and reminded on how to handle leaves of absence in the new normal of remote and hybrid work. While the lines between work life and home life easily blur during a normal workday, the laws have not caught up, nor are they likely to. Employers must maintain boundaries and ensure employees are not working while on protected leave and must also ensure employees who take this leave are not penalized upon their return for truly checking out and not working remotely.