How much communication is acceptable while an employee is on FMLA leave?
Murphy’s law suggests that, even with careful planning, as soon as an employee goes out on Family and Medical Leave Act (FMLA) leave, the employee’s supervisor is going to need to ask the employee a question: for example, where to locate a document or to get a status update on a particular project. While it is clear that employers cannot require employees on FMLA leave to perform substantive work during leave, a few short phone calls to pass on or request knowledge or updates likely are not problematic. Beyond that, however, an employer may face claims for FMLA interference or retaliation.
Limit contact to urgent matters only.
FMLA interference includes not only refusing to authorize FMLA leave, but also discouraging an employee from using leave. Therefore, while an employee on FMLA leave has no right to be left alone, any contact should be limited to urgent matters and should be kept brief. And although some employees volunteer to perform work while on leave, it best not to allow this, because the employee may later claim he or she was forced to perform the work in question. To ensure that no work is performed during leave, some employers take the extra step of cutting off company email and cell phone access for all employees on leave.
If communication is required, limit to the least invasive method.
Along these same lines, only in the rarest of circumstances should an employer ask an employee on leave to come in to the office. Discussions about possible promotion or performance reviews can be handled over the phone or can wait until employer returns from leave. Of course, some events wait for no one – like workplace investigations. Employers likely can require employees on FMLA leave to participate in an investigation as long as the employer can prove that it is following its standard internal investigation procedures and that it would have required the employee’s participation absent the employee’s FMLA leave. Even in this situation, the employer should consider conducting the interview by phone or video conference. In all cases, the employer should be realistic and balance the employee’s health issues against the need to speak with the employee.
Limited contact specific to the FMLA leave is permitted.
Finally, the employer may contact an employee on FMLA leave for an update regarding the employee’s leave and the employee’s return date. The employer should limit the number of communications and select one individual to handle the communications. Ideally, Human Resources will manage the process of returning the employee to work and will documented all communications in writing in advance of the employee’s exhaustion of FMLA leave time. If it appears that the employee cannot return to work or may have restrictions for returning to work upon the exhaustion of leave, the employer should consider if an accommodation under the Americans with Disabilities Act may be necessary.
Employers should consult with experienced human resources professionals and/or labor and employment counsel about proper administration of FMLA leave. For MEA members, the Hotline and a Member Legal Services attorney are available to provide this assistance.
For a deeper dive into FMLA leave, MEA is offering our FMLA Administration Webinar on March 7 from 9:00 – 11:00 AM. A group discount is available if you’d like your managers to join.
About the Author
Amy McAndrew is MEA’s Director of Member Legal Services and has over twenty years of experience as a labor and employment attorney.