Employers are painfully aware of an employee’s right to intermittent leave under the FMLA and all that it entails, particularly when dealing with conditions such as migraines, anxiety, etc., which in some cases tend to manifest themselves primarily on Fridays, Mondays, before or after holidays, and/or big games. Those scenarios tend to push an employer’s patience to the limit. But what about remote work? Does the right to intermittent leave include the right to work remotely?

In a refreshing display of basic reason, a federal appellate court recently answered this question with an unambiguous “no.” In Kemp v. Regeneron Pharmaceuticals (2^nd Cir. Sept. 9, 2024), an employee claimed that her employer interfered with her rights under the FMLA when it required her to use intermittent leave under the FMLA to care for her child, rather than allowing her to continue to work remotely. The employee had been working remotely for approximately one month, when her employer limited her remote work to one day per week and suggested that she use intermittent FMLA leave for any other days she needed to care for her child. The employee sued, claiming her employer’s action interfered with her rights under the FMLA. The court disagreed:

[T]his argument misunderstands the nature of the benefits conferred by the FMLA.  The FMLA protects Kemp’s right to take . . . leave for specified reasons . . . for a specified number of weeks during a 12-month period.  It does not entitle employees to work remotely or make it unlawful for an employer to punish an employee who works remotely.  Remote work may be another form of accommodation, but it is not “leave” within the meaning of the statute. 

While it is clear that employees do not have a right to remote work under the FMLA, they may still have such a right as a reasonable accommodation under the ADA. See,  e.g., Remote-work-as-an-accommodation-in-the-post-covid-workplace/. As with most matters involving employment law, proceed with caution.

If you have any questions contact attorney Alan Seneczko by email or at (262) 560-9696.