Protected Leave & Workers’ Compensation: Considerations for Employers with Remote Workers

By Nick Ball
Barran Liebman Law,

As employers adapt to the post-pandemic economy, many are finding that remote work is here to stay. This E-Alert is part of a series intended to help employers ensure they are prepared for the unique challenges that remote work poses.

1. I have a remote employee who asked to take leave, and we are willing to provide it. Does it matter what we call it?

Your company may be happy to grant this employee leave, no questions asked. However, ensuring that the employee’s leave is properly classified will negate a number of problems that could arise down the road.

If the employee is taking leave for their own medical condition or that of a close family member, they may be entitled to leave under the Family Medical Leave Act (FMLA). Until the leave is designated as FMLA leave, the employer cannot count the employee’s time off against the employee’s 12-week FMLA entitlement. The employer may not mind granting this first leave request, but may find that their patience runs thin as additional leave requests roll in with no real end in sight. Further, the news that a later leave request is subject to FMLA protections because earlier leave was not designated as FMLA is never welcome news.

An employee’s medical leave may also be protected under various state laws. State laws interact in numerous ways with FMLA. For example, leave protected under both the Oregon Family Leave Act and FMLA will run concurrently. If a covered employer does not designate the leave correctly under federal and state law, the employee may be entitled to additional state law leave too.

2. A remote employee has claimed an injury and is filing a workers’ compensation claim in the state where they live, not the employer’s home state. What should I do?

When a remote employee is injured, the employer’s first priority (other than the injury itself) should be to identify the jurisdiction in which the worker’s claim arises. The employer needs to confirm whether it has coverage in the state where its worker is claiming an injury. While many employers carry national policies, some states disallow employers from obtaining third-party insurance (such as Washington), requiring employers to self-insure or purchase coverage through a state fund.

An employer that does not carry proper state coverage may face penalties related to failure to cover an employee and perhaps failure to provide an employee with information on their rights and how to file claims in the jurisdictions they are working from. An employee may file their workers’ compensation claim in the employer’s home jurisdiction or the employee’s, and no policy can control this choice.

States also vary in allowing claims for at-home injuries. For example, if an employee is walking their dog mid-shift and falls, will their injury be covered? The answer may vary from state to state.

Employers should proactively confirm that their workers’ compensation coverage is valid within the jurisdictions where their employees are working from to ensure that policies and coverage are compliant with the laws in those jurisdictions. A strong remote work policy also may help you proactively identify where an employee is working and where they may file a claim upon injury.

For any remote work-related questions, contact Nick Ball at 503-276-2150 or [email protected].

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