Pricey Littler: How will we Know Which State’s Legal guidelines Govern the Leaves and Advantages for our Wandering Employees?

Dear little one: Thank you for answering our question last month about what wage and hours issues we had to consider for our “migrant worker” who moved to North Dakota and wants to continue working remotely. Now that this problem has been resolved, we naturally have one more question for you.

Our small company based in Texas has now grown to 62 employees and we are still growing! We hired Terry Traveler about nine months ago and he’s a great person with skills and a work ethic that we just can’t do without. Unfortunately, Terry is not doing well – he has just been diagnosed with an illness. That diagnosis and the pandemic, as well as Terry’s recent watch for the movie Nomadland, made it clear to him that life is short and that he wants to travel around the United States in his RV. He plans to spend the summer of 2021 in sunny Florida, the fall in beautiful Massachusetts to watch the leaves spin, and then the winter with his extended family in New Jersey, which starts right after Thanksgiving. Terry plans to continue working full time from his RV while he lives and visits all of these locations.

We covered the pay and hourly questions after reading your answer to our last question (Terry would be considered an honest volunteer in all three states). And we know that there are tax issues that we will address more in a separate question. What we worry about are Terry’s perks – we want to make sure he’s getting all of the perks he is entitled to, but what we don’t know is:

• Could Terry use our health insurance in Texas if he needs to see a doctor while living and working in another state?
• What if he gets injured while driving his RV? Would that count as an occupational accident covered by workers’ compensation because he also works there?
• What about FMLA? Would he be covered if he works more than 120 kilometers from our home office in Texas and needs some time off?
• What About State Vacation Laws – Would They Apply?
• Can we continue to use our normal Texas sick leave policy of three days a year when he is not working in Texas?

We’ve never had an employee who wanted to move so much, and while Terry’s job can be done remotely, it makes us nervous. What can we do to protect Terry and ourselves?

– Worried and wondering about Terry Traveler

Dear worried & astonished,

We fully understand your concerns and hope to provide some pointers to help Terry on his journey. Terry is moving much and as we said in Part 1 of this series, the first rule of thumb for law compliance for employees working in remote workplaces (i.e. migrant workers) is “place, place, place”. The law governing a person’s work is most likely the law of the jurisdiction in which that person works – even if the employer is located elsewhere. However, the issues surrounding Terry’s travels are not insurmountable, but they may require a little more time and expense to ensure compliance.

We should start with the question of health insurance. Health insurance coverage is usually limited to the network of “preferred” or “online” providers. Otherwise, an employee pays the provider’s full tariff or an out-of-network tariff (if the plan includes out-of-network coverage at all) if they see a provider that is not considered “on the network”. Most health insurers only have “preferred” or “in-network” providers located in the state in which the plan was purchased or originated. The good news: all health insurance plans cover emergency services in every hospital in the United States. So if Terry has an emergency he should be covered. The bad news is that if Terry’s health requires regular medical attention or he suffers a “non-emergency”, he may not be fully insured. One way is to call your broker and see if you can find a multi-state plan (or MSP) that covers Terry in the states he wants to visit.

In the countries in which the employer is physically resident, an employee’s accident insurance usually applies. When an employee travels to another country, he falls under the jurisdiction of a different, but fundamentally similar, employee compensation system. Many states, including Texas, have reciprocal agreements with other states that allow workers to be insured under their home state’s Workers Compensation Act in the event of injury in another state. This shouldn’t be a problem, however, but we encourage you to contact your insurance broker and check out government programs to make sure.

In general, an employee’s injury or illness is only eligible for compensation under employee compensation if it arises “from and during employment”, regardless of where the injury occurred. Therefore, even though Terry’s RV is his remote work place, if Terry is involved in a car accident while driving his RV, since driving is not one of Terry’s job responsibilities and he is not in at the behest of the employer, Terry is unlikely to be an insured indemnifiable injury. If, on the other hand, Terry slips and falls on his way to the toilet in his motorhome during his working hours, this minor deviation can be considered as “in the course” of his employment and constitute an insured loss.

If Terry is seriously injured or needs time off because of his own serious health condition, he would likely be covered by the Family and Medical Leave Act (FMLA). An employee working remotely (75 miles or more from the employer’s office) falls under the FMLA if the office the employee reports to and from which their assignments are made has 50 or more workers in the vicinity engaged by 75 miles around its location. Your Texas office would qualify, provided Terry reports there and gets his work from there. The current regulation states: “A worker’s personal residence is not a place of work for workers, such as salespeople who travel to a sales area and usually leave their place of work and return from work to their personal residence, or workers who work from home working out, such as under the term Flexiplace or teleworking. Rather, their workplace is the office to which they report and from which their assignments take place. ”Therefore, the location of Terry’s motorhome at the time he may need an FMLA vacation is not his place of work in the sense of the FMLA, and Terry would likely be eligible for FMLA vacation if he met all of the other FMLA requirements.

Terry may also be covered by state vacation laws in the event a Covered Event occurs. Massachusetts, for example, has a Family Paid Medical Leave Act (PFML). Unlike FMLA, to be eligible for PFML paid vacation, an employee must have earned at least $ 5,400 in the past 12 months. PFML eligibility does not depend on how long an individual has worked for a current employer – it applies to all W-2 employees who work in Massachusetts (which Terry does for the part of the year he works in Massachusetts, can be). If Terry falls ill after making more than $ 5,400 as a Massachusetts employee, he may be insured and you may need to withhold his salary from his paycheck to fund this benefit. Likewise, the New Jersey Family Leave Act (NJFLA) applies to employers with 30 or more employees worldwide and to employees who work in New Jersey who have been with the employer for at least a year and have worked 1,000 hours or more in the past 12 months. NJFLA grants an employee up to 12 weeks off, among other things, to bind a new child or to look after an insured family member, but does not apply to their own disability or injury. So if Terry falls ill while in Massachusetts and uses his 12 week FMLA vacation and Massachusetts PFML for his own illness, he may have up to 12 weeks off under the NJFLA when he arrives in New Jersey in November, if his mother gets sick and he has to take care of her. They may also be eligible for state insurance for their New Jersey family vacation benefits, and you may need to fund those benefits as well. Payroll should be able to make these adjustments to its locations when Terry moves.

After all, if you have three paid sick days per year to Terry, you may not be providing enough paid sick leave to comply with Massachusetts or New Jersey laws. Massachusetts and New Jersey each require one hour of paid sick leave for every 30 hours worked, up to 40 hours per year. Terry’s three days per year employment would not be enough to meet the legal requirements if he worked full time.

The most important thing is that Terry keep you updated every time he starts working in a different state. With a little pre-planning and a few key guidelines and procedures, Terry can be on your way in no time!