Employee Death Benefits

<div class="Section1">Determining whether to grant FMLA leave can be complicated given the uncertainties generated by remote work arrangements. Employers do, however, have options.</div><br /> <div class="Section1"><br /> <br /> To determine whether a remote worker is legally entitled to FLMA leave, the employer will have to conduct a case-by-case analysis to determine whether the employee’s worksite is located for FMLA purposes. The company must examine their physical worksite, reporting site and the site from which assignments come. If the employer does not have at least 50 employees within 75 miles of any of those locations, the employer would have a strong argument that the employee is not entitled to FMLA leave.<br /> <br /> Other employers may wish to grant FMLA leave to employees who meet the hours-of-service and employment length requirements regardless of their remote location. While this approach can help employers avoid litigation, it can also provide employees with benefits to which they are not legally entitled (depending on the facts).<br /> <br /> Employers may also be able to assign a reporting worksite and an assignment site to each remote employee when agreeing to continue a remote working arrangement. The employer could then examine the facts to determine whether they have at least 50 employees within 75 miles of those reporting/assigning worksites.<br /> <br /> </div>

<div class="Section1">Editor’s Note: The DOL has released a bulletin clarifying its position on employer obligations when determining whether a remote employee is eligible for FMLA leave. Employers must generally provide FMLA leave if they employ at least 50 employees within a 75-mile radius. When employees work from home, the worksite for FMLA eligibility purposes is the office to which they report or from which their assignments are generated. So, if at least 50 employees (including remote workers) are employed within 75 miles of the office to which the employee reports or from which assignments are generated, the remote employee is eligible for FMLA leave (even if no other employees are employed within 75 miles of the employee’s remote office).<a href="#_ftn1" name="_ftnref1">¹</a></div><br /> <div class="Section1"><br /> <br /> The Family Medical Leave Act (FMLA) is a federal law that gives covered employees the right to 12 weeks of unpaid leave each year for any covered reason. While it may seem that employees who are not required to report to a physical location would be less likely to need time off to handle family and medical issues, the reality is that many are equally unable to work while a covered reason is ongoing. Employers with remote workers should be aware that they may be required to grant an employee’s request for unpaid time off even if the employee does not report to a physical worksite.<br /> <br /> Covered reasons under the FMLA include:<br /> <blockquote>For the birth and care of the newborn child of an employee,<br /> <br /> For placement with the employee of a child for adoption or foster care,<br /> <br /> To care for an immediate family member (spouse, child, or parent) with a serious health condition, or<br /> <br /> For medical leave if the employee is unable to work because of a serious health condition.</blockquote><br /> Not all employees are eligible for unpaid FLMA leave and not all employers are subject to the law. Employees are eligible for FMLA leave if they:<br /> <blockquote>Have worked for their employer at least 12 months,<br /> <br /> Have worked at least 1,250 hours over the 12 months preceding the request for FMLA leave, and<br /> <br /> Work at a location where the company employs 50 or more employees within a 75-miles radius.<a href="#_ftn2" name="_ftnref2">²</a></blockquote><br /> This law may create unanticipated complications for employers who permit employees to work on a remote basis. In some cases, remote workers report to an office that is in their same geographic location. However, it is becoming more common for workers to report to managers and supervisors who are also working remotely from different locations.<br /> <br /> When a remote employee requests FMLA leave, questions involving whether the employee is entitled to the FMLA leave often arise. The issue in these cases is whether the employer has at least 50 employees within a 75-mile radius of the remote employee’s workplace.<br /> <br /> <hr /><br /> <br /> <strong>Planning Point:</strong> Employers who continue to permit remote work should be aware that existing and evolving state and local paid leave laws may apply. For example, Illinois has enacted a new paid bereavement act that became effective January 1, 2023. Under the law, the same requirements that apply in determining FMLA eligibility apply. An employee is eligible to take leave if the employee has worked for a covered employer for at least 1,250 hours within the previous 12 months, and also works at a location where the employer has 50 or more employees within a 75-mile radius.<a href="#_ftn3" name="_ftnref3">³</a><br /> <br /> The Healthy Delaware Families Act provides up to 12 weeks of paid family and medical leave beginning in 2026 (employers will be required to begin implementing payroll deductions as of January 1, 2025). The law is similar to the federal FMLA, but applies to smaller employers, so that any employer with 10 or more employees who report to a Delaware worksite will be required to comply. It remains to be seen whether the law will apply to employers with ten or more employees who work remotely from Delaware.<a href="#_ftn4" name="_ftnref4">⁴</a><br /> <br /> <hr /><br /> <br /> A Texas court<a href="#_ftn5" name="_ftnref5">⁵</a> recently refused to grant a motion to dismiss a case where a company denied an employee’s request for FMLA leave. The company claimed they did not have 50 employees within a 75-mile radius in Texas. The employer’s headquarters was in Ohio, yet the employee was working remotely from Texas (the employee’s supervisor was also working remotely from Texas). The employee claimed that her “worksite” for FMLA purposes was Ohio, where the company was headquartered.<br /> <br /> To have won summary judgement, the court found the company must establish that Ohio was not:<br /> <blockquote>The employee’s “home base”,<br /> <br /> The site that assigns the employee’s work, or<br /> <br /> The site to which the employee reports</blockquote><br /> The court found that the term “worksite” had to be a location where the employee was physically present and that it referred not to the physical base of the employer’s operations, but to the physical base of the employee. The employee in this case was never physically present in Ohio, so she could not prove Ohio was her home base. However, the court found an issue of fact with respect to where the employee’s assignments were created and originated. The court found that this location is the site from which the employee’s day-to-day instructions were provided and that there was an issue of fact as to whether the assignments originated at the Ohio headquarters.<br /> <br /> The Texas case settled privately before the court provided a final resolution of the issues. The case does, however, point to the fact-intensive nature of the inquiry as to whether any given remote employee may be eligible for FMLA leave. Employers should be aware that is possible that they may be required to provide FMLA leave even if they do not have 50 employees within a 75-mile radius of the remote employee’s physical location. That may be the case if the employee can establish that assignments were created or originated from the employer’s central location or if the employee sends assignments to a central location where they are evaluated (i.e., if the employee’s reporting worksite is where the employer has at least 50 employees).<br /> <br /> </div><br /> <div class="refs"><br /> <br /> <hr align="left" size="1" width="33%" /><br /> <br /> <a href="#_ftnref1" name="_ftn1">1</a>.   See https://www.dol.gov/sites/dolgov/files/WHD/fab/2023-1.pdf<br /> <br /> <a href="#_ftnref2" name="_ftn2">2</a>.   More information on the Family and Medical Leave Act requirements can be found at <a href="https://www.dol.gov/agencies/whd/fmla">https://www.dol.gov/agencies/whd/fmla</a>.<br /> <br /> <a href="#_ftnref3" name="_ftn3">3</a>.   <em><em>See</em> </em>Family Bereavement Leave Act (FBLA), available at <a href="https://www.ilga.gov/legislation/102/SB/PDF/10200SB3120lv.pdf">https://www.ilga.gov/legislation/102/SB/PDF/10200SB3120lv.pdf</a>.<br /> <br /> <a href="#_ftnref4" name="_ftn4">4</a>.   Available at <a href="https://legis.delaware.gov/json/BillDetail/GenerateHtmlDocumentEngrossment?engrossmentId=25023&amp;docTypeId=6">https://legis.delaware.gov/json/BillDetail/GenerateHtmlDocumentEngrossment?engrossmentId=25023&amp;docTypeId=6</a><br /> <br /> <a href="#_ftnref5" name="_ftn5">5</a>.   <em>Landgrave v. Fortec Medical, Inc.</em>, 1-20-CV-968-RP (U.S. District Ct., W.D. Austin, Tx. 2022).<br /> <br /> </div>

<div class="Section1"><em>Editor’s Note: </em>While remote work arrangements are not entirely new, employers should be aware that issues involving remote work are newly in the spotlight for state governments. Because of this, issues involving remote work arrangements are continuing to evolve. Employers who are contemplating a remote work arrangement should be advised of this, and of the need to comply with state-level laws in all states where their employees reside and work—regardless of where the employer is physically located. Failure to comply could subject to the employer to fines, penalties and litigation in the state of the employee’s residence.</div><br /> <div class="Section1"><br /> <br /> Many employers and employees have become accustomed to work-from-home arrangements and determined that in-person reporting to a physical office is no longer necessary. However, those employers who continue to permit remote work arrangements should know that most of the temporary relief that was put into place during the pandemic has expired. Now, employers will be required to comply with state-level laws and should consider implementing policies and procedures to ensure that remote work arrangements proceed smoothly.<br /> <br /> When making decisions to permit remote work arrangements, employers must consider all relevant nondiscrimination laws, including the Age Discrimination in Employment Act, the Americans with Disabilities Act and Title VII of the Civil Rights Act of 1964. Decisions to permit remote work must be made in a nondiscriminatory manner to avoid potential lawsuits under these laws and state-level equivalents.<br /> <br /> Employers must also consider state-level wage and hour laws. They should consider developing programs to track employees’ work time, ensure that employees are paid for all hours worked (including overtime requirements) and to ensure that employees are provided with any legally required break time during their workday.<br /> <br /> For many employers, confidentiality and data security are also an issue. These employers should take steps to protect customer information and other confidential information in the employee’s remote work environment (for example, by requiring data protection software).<br /> <br /> Employers should implement clear policies and procedures that will be followed in determining when to permit remote work arrangements. They should also develop detailed procedures that will govern various aspects of the remote work arrangement. Those policies should address timekeeping requirements, expense reimbursement issues, any in-person reporting requirements, who is responsible for the employee’s work equipment and care, network security requirements and how equipment and documents will be returned to the employer upon termination of the working relationship.<br /> <br /> </div>

<div class="Section1"><em><em>Editor’s Note:</em></em> In April of 2023, the Federal Trade Commission issued a final rule banning nearly all non-compete agreements nationwide. <span style="font-weight: 400;">On August 20, 2024, the district court for the Northern District of Texas<a href="#_ftn2" name="_ftnref2">¹</a></span><span style="font-weight: 400;"> held that the rule was unconstitutional as it violated the Administrative Procedure Act, and thus issued a nationwide ban on enforcement of the FTC ban.  The FTC has appealed a similar decision issued by the Middle District of Florida, but has yet to file an appeal in the Fifth Circuit.</span></div><br /> <div class="Section1"><br /> <br /> Non-compete agreements are often included in employment contracts to prevent employees from accepting employment in the same line of work as the employer or from opening their own competing businesses. Whether these agreements are enforceable varies from state to state. Employers with a remote workforce will be required to consider state and local laws governing the enforceability of noncompetition or non-solicitation and other employment agreements. Those laws have been evolving rapidly in recent years, so that a non-compete agreement that is enforceable in one state may not be enforceable in the state where the remote employee is situated. Employers who permit employees to work remotely from other states will be responsible for monitoring these developing laws.<br /> <br /> As recently as March of 2022, the California Attorney General issued an alert<a href="#_ftn1" name="_ftnref1">¹</a> reminding employers that non-compete agreements are not enforceable in the state of California. Under California law, non-compete agreements are specifically non-enforceable with respect to California residents even if the company operates in another state that does recognize non-compete covenants as enforceable.<br /> <br /> In New York state, non-compete agreements are only enforceable if (1) the agreement is necessary to protect the employer’s legitimate interests, (2) it does not impose an undue hardship on the employee, (3) the agreement does not harm the public, (4) the agreement is reasonable in time period and geographic scope.<a href="#_ftn2" name="_ftnref2">²</a><br /> <br /> Other states have developed new and detailed laws governing the enforceability of non-compete agreements. For example, Colorado<a href="#_ftn3" name="_ftnref3">³</a> has revised its laws on noncompetition and non-solicitation covenants effective August 10, 2022. Under the new law, noncompete agreements are enforceable when they are used to protect trade secrets. However, these covenants must be no broader than reasonably necessary to protect a legitimate interest in protecting the trade secrets in question. Even these non-compete covenants are only enforceable if the employee earns enough income to be classified as a highly-compensated employee when the agreement is entered into and when the company attempts to enforce the agreement (in Colorado, the “highly compensated” limit is $101,250 in 2022, $112,500 in 2023 and $123,750 in 2024, to be indexed to inflation in later years).<a href="#_ftn4" name="_ftnref4">⁴</a> Non-solicitation covenants are only enforceable against employees earning at least 60% of the highly-compensated employee threshold. Employers will also have to provide the employee with advance notice and give them time to review and agree to the covenant.<br /> <br /> In Washington D.C., non-competes are enforceable only against employees who earn at least $150,000 per year ($250,000 for medical specialists). While a new law initially banned most non-competes, effective October 1, 2022, the law on non-competes was amended to provide that employers can ban employees from using and disclosing confidential and proprietary information (i.e., trade secrets) during and after the employee’s employment.<a href="#_ftn5" name="_ftnref5">⁵</a><br /> <br /> Employers with a remote workforce will be required to conduct a state-by-state analysis to determine the rules for enforcing non-compete and non-solicitation agreements going forward.<br /> <br /> </div><br /> <div class="refs"><br /> <br /> <hr align="left" size="1" width="33%" /><br /> <br /> <a href="#_ftnref1" name="_ftn1">1</a>.     <i><span style="font-weight: 400;">Ryan LLC v. Federal Trade Commission, Civil Action No. 3:24-CV-00986-E.</span></i><br /> <br /> <a href="#_ftnref2" name="_ftn2">2</a>.    Available at <a href="https://oag.ca.gov/news/press-releases/attorney-general-bonta-reminds-employers-and-workers-noncompete-agreements-are">https://oag.ca.gov/news/press-releases/attorney-general-bonta-reminds-employers-and-workers-noncompete-agreements-are</a><br /> <br /> 3.   <em><em>See</em></em> <a href="https://ag.ny.gov/sites/default/files/non-competes.pdf">https://ag.ny.gov/sites/default/files/non-competes.pdf</a><br /> <br /> <a href="#_ftnref3" name="_ftn3">4</a>.   Available at <a href="https://leg.colorado.gov/sites/default/files/2022a_1317_signed.pdf">https://leg.colorado.gov/sites/default/files/2022a_1317_signed.pdf</a><br /> <br /> <a href="#_ftnref4" name="_ftn4">5</a>.   <a href="https://leg.colorado.gov/sites/default/files/2022a_1317_signed.pdf">https://leg.colorado.gov/sites/default/files/2022a_1317_signed.pdf</a><br /> <br /> <a href="#_ftnref5" name="_ftn5">6</a>.   D.C. Act 24-526.<br /> <br /> </div>

<div class="Section1">Under the Affordable Care Act, employers who have 50 or more full-time employees are required to provide affordable health coverage to employees. That law applies at the federal level to all employers, regardless of where they are situated (<em><em>see</em></em> Q <a href="javascript:void(0)" class="accordion-cross-reference" id="8858">8858</a>- Q <a href="javascript:void(0)" class="accordion-cross-reference" id="8886">8886</a> for more information on the employer mandate).<div class="Section1"><br /> <br /> However, many states have also implemented their own ACA-like laws that govern health coverage requirements within the state (i.e., New Jersey, the District of Columbia, Massachusetts, Rhode Island and California have their own health coverage laws in place). Because of that, it is also possible that employers could be subject to penalties for failure to provide affordable coverage at the state level. Those employers will also be subject to state-level reporting requirements if they permit an employee to work remotely from a state that has health coverage laws in effect.<br /> <br /> Some state laws mirror the federal ACA reporting requirements. However, Massachusetts has developed its own Forms 1099-HC<a href="#_ftn1" name="_ftnref1">¹</a> that differ from the federal Forms 1095-C. Employers who permit employees to work remotely from Massachusetts must send Forms 1099-HC to employees within the state. Employers who fail to send the forms can be subject to a penalty of up to $50 per individual (up to a cap of $50,000).<a href="#_ftn2" name="_ftnref2">²</a> The forms must be submitted electronically.<a href="#_ftn3" name="_ftnref3">³</a><br /> <br /> The existing state-level reporting requirements for employers are detailed and vary from state to state. Employers who permit employees to work remotely in states other than where the employer is physically located will be required to comply with a variety of state-level laws or risk becoming subject to penalties for noncompliance.<br /> <br /> </div><div class="refs"><br /> <br /> <hr align="left" size="1" width="33%"><br /> <br /> <a href="#_ftnref1" name="_ftn1">1</a>.&nbsp;&nbsp; <a href="https://www.mass.gov/service-details/1095-b-and-1099-hc-tax-form">https://www.mass.gov/service-details/1095-b-and-1099-hc-tax-form</a><br /> <br /> <a href="#_ftnref2" name="_ftn2">2</a>.&nbsp;&nbsp; MGL c. 62C, &sect; 8B.<br /> <br /> <a href="#_ftnref3" name="_ftn3">3</a>.&nbsp;&nbsp; <a href="https://www.mass.gov/info-details/health-care-frequently-asked-questions-for-employers">https://www.mass.gov/info-details/health-care-frequently-asked-questions-for-employers</a><br /> <br /> </div></div><br />