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.

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.

Planning a maternity leave

http://www.boston.com/jobs/news/jobdoc/2012/10/maternity_leave_questions_for.html