FMLA and remote employees

Q: I have worked for a Boston-based company for several years. I live in western Mass and have lived here for over 10 years. I never considered it a big deal. However, now I am applying for a Family and Medical Leave Act (FMLA) leave, which I desperately need. My HR Manager is saying that I am not eligible because I work more than 75 miles away from our main office in Boston and my work site has fewer than 50 employees. I work from a home office. I don’t get it. I never thought I would be stripped of benefits just because I work at home.

A: Let’s review the Family and Medical Leave Act (FMLA). Most employers, with over 50 employees, are required to offer FMLA to eligible employees. What makes an employee eligible?

– An employee has to have worked for 12 months for that employer,

– An employee has to have worked 1250 hours in the previous 12 months before the leave begins, and

– An employee has to work at a site with at least 50 other employees, within 75 miles.

Your HR Manager may be getting stuck on the third requirement. More and more of us are working remotely. Well, thankfully, the FMLA has shared some guidance on this third requirement as it relates to employees working from a home office. An employee’s personal residence is not a worksite. For employees who work at home, their worksite is the office to which they report and from which assignments are made. [29 CFR 825.111(a)(2)] In short, this means you should consider the Boston office your worksite for FMLA purposes, assuming you report into that office and receive work from the office.  If the Boston office has fewer than 50 employees, you may still be out of luck.  If they have 50 or more employees, you have a strong argument.

Share this information with your HR Manager. It may be a detail of the law which is unfamiliar to your HR Manager. Thankfully there is guidance available.

Pattie Hunt Sinacole is a human resources expert and works for First Beacon Group in Hopkinton, an HR consulting firm. She contributes weekly to Boston.com Jobs and the Boston Sunday Globe Money & Careers section.

Husband seriously ill, what are my options?

Q: My husband was just diagnosed with a serious illness, possibly life threatening. I am unsure of my leave options at work. I have been with my employer for almost nine years. Can you share what I might be eligible for? I have never take a leave before.

A: I am sorry that your husband was diagnosed with a serious health condition. I am sure this has created a lot of stress for both of you as well as other family members.

You may qualify for the Family and Medical Leave Act (FMLA). The FMLA allows many employees to take up to 12 weeks of job-protected leave off for a number of reasons, one being to allow an employee to care for a spouse with a serious health condition. There are a few conditions though. Your employer has to employ 50 or more workers. It sounds like you have already met an additional requirement, that you have worked for your employer for 12 months or more. Also, you must have worked at least 1,250 hours in the last 12 months. Finally, you must work at a location where the employer has 50 employees within 75 miles. This law does not require that your employer pay you for any of this time off. A helpful fact sheet on FMLA can be found at http://www.dol.gov/whd/regs/compliance/whdfs28.pdf.

You also may qualify for earned sick time assuming you are employed in Massachusetts. As of July 1, 2015 employees in Massachusetts are permitted to take up to 40 hours per year of sick time for a number of reasons, one being to care for a sick spouse. If your employer has 11 or more employees, the sick time must be paid, assuming you have earned it. More information can be found at http://www.mass.gov/ago/docs/workplace/earned-sick-time/est-employee-notice.pdf.

Your company may also have their own internal policy on sick time, family illness or paid time off (PTO) which may also provide some income protection if you need to take time off. If your employer has a handbook, it may be helpful to review the handbook or any internal policies on time off or leaves of absence.

If you have an internal Human Resources (HR) department, they might be a helpful resource. They may be able to work through a few different scenarios with you. It is wise to know in advance, what options might be available to you. There may be flex hours or telecommuting options that could assist you during this time.

Also many employers offer Employee Assistance Programs (EAPs) which provide short-term counseling, resources and referrals for employees.

Pattie Hunt Sinacole is a human resources expert and works for First Beacon Group in Hopkinton, an HR consulting firm. She contributes weekly to Boston.com Jobs and the Boston Sunday Globe Money & Careers section.

Sick Relative and Sick Leave Benefits

Q: I recently had to take some sick days off to care for my brother who is suffering from HIV. I really don't want to have to explain to HR why I am taking these days off. They keep asking my reason for taking the days off. I have said that a family member is very sick. They have asked which family member and to "please describe the nature of the illness." Is this legal? Do I have to disclose? Very few people know about his illness and there is still a stigma associated with HIV whether we want to admit to it or not. 

A: You are an incredibly supportive sibling. In order to take approved “sick time” (whether paid or unpaid) off from work, you need to provide your employer with enough information for your employer to determine that you are using the leave for the purposes intended. You are wise, however, to protect sensitive medical information.

Jeff Dretler, an employment attorney from Fisher & Phillips, explains: "Under the new Massachusetts Earned Sick Time Law, effective July 1, 2015, most employees can use accrued sick time to care for an 'immediate family member' suffering from a 'medical condition that requires home care, professional medical diagnosis or care, or preventative medical care.' Under the law though, an immediate family member does not include a sibling which is why your employer needs more information about the familial relationship. Similarly, under the federal Family and Medical Leave Act (FMLA), which applies to employers with 50 or more employees, an employee seeking time off to care for a seriously ill family member (which like Massachusetts law does not include siblings) must describe the type of care which the employee plans to provide for the family member."

An employer may ask about the “nature of the illness” to better understand what benefits you may apply. Dretler further explains, "Relevant facts may include whether the patient is hospitalized, the type of care the patient will require, the expected duration of care, but need not necessarily include the diagnosis. In most circumstances, it will not be necessary for you to disclose to your employer the actual diagnosis of the person for whom you are caring (e.g., HIV). An employer who demands from the employee more information than is necessary, to determine the employee’s right to the leave, could very well be in violation of state or federal laws, including those which protect employee privacy."

I would recommend asking specifically what your employer is seeking. Is there a form that they could provide? Many physicians have navigated similar issues and have experience with sharing what is truly required. If you are further pressed for information, you may want to contact an attorney.

Pattie Hunt Sinacole is a human resources expert and works for First Beacon Group in Hopkinton, an HR consulting firm. She contributes weekly to Boston.com Jobs and the Boston Sunday Globe Money & Careers section.

Leave Options in a Small Company

Q: I work for a 20-person technology firm in the Boston area. I asked our controller about taking an FMLA leave because I am expecting a baby in August. The controller told me there is no FMLA leave available to me because of the company size. This was a shock to me since I really thought I would receive 12 weeks off with my baby. Am I eligible for anything? Or just the sick time that I have accrued?

A: I am sorry that you were given news that was not was not what you were expecting. The Family and Medical Leave Act (FMLA) only applies to private-sector employers with 50 or more employees. If your employer only employs 20 or so employees, your firm does not have to comply.

However, you may be eligible for a leave under the Massachusetts Maternity Leave Act (as of April 7, 2015, called Parental Leave in the state of Massachusetts because it must be applied in a gender neutral manner). This law requires employers with six or more employees to provide eight weeks of leave for the purpose of giving birth. The leave does not have to be paid. As the employee, you must have completed your initial probationary period (often described in an offer letter or your employee handbook) but the probationary period cannot be longer than three months. The Massachusetts law requires that the employee requesting the leave give at least two weeks' notice of the anticipated dates of the leave, both the start date and the return date.

Effective July 1, 2015, there is a new sick time law in Massachusetts. Since your employer has 11 or more employees, an employee may use up to 40 hours of accrued paid sick time per calendar year. Your employer may offer also a short-term disability plan to employees.

It may be worth asking about the Massachusetts Maternity Leave Act (soon to be known as Parental Leave), any sick time (or personal, vacation, floating holidays, etc.) you may have earned or accrued and if your company offers a disability plan.

Pattie Hunt Sinacole is a human resources expert and works for First Beacon Group in Hopkinton, an HR consulting firm. She contributes weekly to Boston.com Jobs and the Boston Sunday Globe Money & Careers section.

FMLA and siblings - what is "in loco parentis?"

Attorney Jeff Dretler de-mystifies the concept of "in loco parentis" with respect to FMLA leaves.

FMLA for a sibling?

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