It’s H-1B season, can these employees take FMLA leave?
Key to remember: H-1B employers are obligated to comply with the FMLA, as employees on these visas have the same FMLA rights as regular employees.
Applies to: Employers who hire foreign nationals in the U.S. on H-1B visas and are covered by the FMLA.
Impact to customers: Employers need to be aware of the applicability of the FMLA to H-1B employees.
Possible impact to JJK products/services: This article will appear on the FMLA Manager. The information will likely be included in the Essentials of FMLA manual.
The question starts with the requirement to pay H-1B nationals who come to work in the U.S. while they are working for you. You may not generally prohibit an H-1B employee from working, or otherwise allow them to take unpaid leave, with some notable exceptions, including under the FMLA.
You need not pay employees under the H-1B program for nonproductive time due to reasons not related to employment, such as a worker’s voluntary absence from work or a hospitalization, and so on. All this does not, however, negate your obligation to comply with the Immigration and Nationality Act or any other statute relating to employment such as the FMLA.
Therefore, H-1B employees have the same rights to request and take unpaid leave as other employees under the FMLA. Whether the employee may use accrued paid time off is generally up to your company policies.
H-1B employees are also treated as regular employees for purposes of the Americans with Disabilities Act (ADA). Therefore, you could have a situation where an employee exhausts the 12 weeks of FMLA leave and still needs time off as an accommodation under the ADA.
While you don’t want the U.S. Department of Labor’s Wage and Hour Division knocking on your door regarding potential FMLA violations, or the EEOC checking to make sure you did not discriminate on the basis of a disability, you also don’t want the U.S. Customs and Immigration Service, which enforces the H-1B provisions to pay you a visit. Therefore, you should have all your appropriate documents in order for all your employees, including the FMLA forms and notices.
While we’re on the subject of employees from outside the U.S., you may be wondering whether U.S. citizens working for your company outside the U.S. are entitled to FMLA. After all, they are citizens. The FMLA, however, applies to employees working in the U.S., not those who work outside the country. Even if the company is an American one, the employee must be working in the U.S. for the FMLA to apply.
This article was written by Darlene M. Clabault, SHRM-CP, PHR, CLMS, of J. J. Keller & Associates, Inc. The content of these news items, in whole or in part, MAY NOT be copied into any other uses without consulting the originator of the content.
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