A unique telecommuting problem may arise with respect to an employee’s request for leave under the federal Family and Medical Leave Act (“FMLA”). Take, for example, a federal lawsuit currently pending against a large employer in the Midwest. A terminated employee has alleged that she was fired because of her stated intention to take FMLA leave. While the employer denies that the intended FMLA leave had anything to do with the employee’s firing—the employer has cited work-related conduct as the reason for the employee’s dismissal—it has also asserted that the employee had not worked the requisite amount of hours to be deemed eligible for FMLA leave. To qualify for FMLA leave under the federal statutory requirements, an employee must have worked at least 1,250 hours during the 12-month period preceding the time during which the employee requests leave. The employee had been part-time and her part-time hours would not have added up to 1,250 as of the time she intended to commence FMLA leave.

The employee has contended that her “work at home” hours—if counted—place her above the 1,250 hour threshold for FMLA eligibility. This argument is particularly germane to employers with telecommuting employees expected to work only part-time hours. If an employer does not keep scrupulous records of hours worked by an employee, an employee seeking FMLA leave could assert that he or she was working a substantial number of hours from home—more than the employer may have anticipated. And because there is no supervisory presence at the employee’s home, as there may be at the office, the employer may not be aware that the employee has been devoting substantially more hours to his duties than what the employer expected. Only when the employee seeks FMLA leave (or much later) would the employer learn that the employee is, in fact, eligible for such leave even though the employer did not contemplate FMLA eligibility. Depending upon the presence (or absence) of a system for documenting the hours of a telecommuting employee, an employer may not be able to rebut the employee’s contention that he or she worked more than the number of hours expected and thus was entitled to FMLA leave. A written policy and acknowledgment by the telecommuter that specifies the anticipated work and hours and requires prior approval for overtime would go a long way toward avoiding an unexpected issue related to an employee’s FMLA eligibility.