News

A number of Wisconsin employers have a long history of using remote employees. However, as a result of the COVID-19 pandemic, the number of Wisconsin employers using remote employees has dramatically increased, as has the number of remote employees being used. Although many employees who had been working on a completely remote basis earlier in the pandemic have long since returned to the workplace in some capacity, a significant number of employees continue to work remotely on a full-time basis and will almost certainly continue to do so for the foreseeable future.

Remote work presents employers with a number of different complications that they may not have previously had to face, including the impact of that work on employment leave laws. I recently had the opportunity to present on this topic to Metro Milwaukee SHRM along with my co-presenter, Schuyler File, from the Hausmann Group (www.myhaus.com). Among other issues, we focused on three specific employer take-aways that are also relevant to this post.

1. Employers need to determine what, if any, implications their remote work arrangements have on their obligations under the Family and Medical Leave Act (“FMLA”) and the Wisconsin Family and Medical Leave Act (“WFMLA”).

   Employers are not required to comply with either the FMLA or the WFMLA until they have reached a minimum threshold of 50 employees. Once this threshold is reached, Wisconsin remote employees are entitled to the WFMLA’s protections regardless of how close they live to their employer’s physical workplace, so long as they satisfy the WFMLA’s minimum requirements relating to hours of work and length of employment, and so long as they live somewhere within Wisconsin.      

   The FMLA is different. Not only must an employee satisfy the applicable hours of work and tenure requirements, he or she must also be “employed at a worksite where 50 or more employees are employed by the employer within 75 miles of that worksite.” 29 C.F.R. § 825.110. On its face, this rule would seem to eliminate the possibility that a good number of remote employees – for example, many of those living out-of-state – could qualify for FMLA protections. However, the Department of Labor has clearly stated otherwise, providing that, for purposes of the FMLA, remote employees are not employed at their homes, but at “the office to which they report and from which assignments are made.” 29 C.F.R. § 825.111(a)(2). As a result, the key for a remote employee is not whether the employee lives within a 75-mile radius of a worksite, but whether he or she reports to and receives assignments from a worksite that has 50 or more employees employed by the employer within a 75-mile radius.  

2. Employers need to determine whether the Americans with Disabilities Act (“ADA”), the Wisconsin Fair Employment Act (“WFEA”), or another state’s equivalent disability accommodation law could apply to require leave for remote employees and, if so, the implications resulting from that application.

   Whether or not an employer must comply with the FMLA or the WFMLA, or whether a particular remote employee is eligible for leave under one or both of those laws, the employer must also consider whether the employee is eligible for leave under the ADA and/or the WFEA. The ADA and the WFEA have long been understood to require employers to provide a period of unpaid leave to disabled employees as a reasonable accommodation under certain circumstances (including where the accommodation would not impose an undue burden on the employer, and there is no other appropriate accommodation that the employer might prefer). In the last several years, the 7th Circuit Court of Appeals has issued multiple decisions providing that this obligation may be limited to a relatively short period of time under federal law[i]; however, Wisconsin has not been nearly as helpful to employers. Instead, it appears that, under certain circumstances, a period of unpaid leave lasting several months or more may well be considered a reasonable accommodation under Wisconsin law.

   There is no reason why an employer’s accommodation obligations would not apply equally to in-person and remote employees – they do. However, the fact that an employee is working remotely may well provide the employer with a greater amount of flexibility when it comes to a request for leave (outside of the FMLA/WFMLA context), and almost certainly provides the employer with a greater ability to push back on such a request where appropriate. Indeed, the fact that an employee is already working from home may lessen the impact of, or eliminate, some of the reasons why he or she might seek non-FMLA medical leave, including an inability to travel to the office, office-related stress, exhaustion, etc. For example, an employee suffering from motion-induced elevated heart rates as a result of long-COVID may not be able to work in an office environment that requires regular movement (i.e., walking between offices, to/from the restroom, etc.), but may be able to work without such movement from his or her home.

   Put simply, employers that receive a leave request from a remote employee should take steps to fully engage in the interactive process and push back against the employee and/or the employee’s health care provider when faced with accommodation-related assertions that appear inconsistent with the fact that the employee is already working from home. If done appropriately, the employer may be able to limit the amount of leave purportedly required or uncover a strong basis on which to deny the requested leave altogether.      

3. Employers need to determine whether any of their remote, out-of-state employees are covered by any leave laws from the states in which the employees reside.

As a matter of course, Wisconsin employers with any significant number of employees in a state other than Wisconsin should take steps to ensure that they are aware of, and comply with, the laws of that other state. Unfortunately for employers, state employment laws frequently have different number-of-employee thresholds when defining which employers must comply, and some of those thresholds are very low. This concept extends to state specific leave laws. For example, Colorado recently passed a Family and Medical Leave Insurance law providing that, beginning on January 1, 2024, employers with any number of employees regularly working within the state (i.e., one or more employees) must provide eligible Colorado-based employees with paid medical leave for the circumstances identified by the law (which include, but are not limited to, many of the reasons set forth under the FMLA).

If they have not done so already, employers with out-of-state remote workers should consider consulting with legal counsel to determine what state-specific leave and other employment law obligations they may need to address, as well as the most efficient manner in which to do so.  

*     *     *

If you need any further guidance regarding the employment law implications of remote workers, please do not hesitate to contact John Gardner, or any other member of DeWitt’s Labor and Employment Law Practice Group.