FMLA LACKS CLEAR BOUNDARIES FOR EMPLOYEE CONTACT DURING LEAVE
Q: Does the Family and Medical Leave Act (FMLA) address when and under what circumstances an employer may lawfully contact an employee, or ask him or her to return to work or to do workrelated matters while he or she is on FMLA leave?
A: The FMLA doesn’t establish clear boundaries for contact between employers and employees while employees are on FMLA leave. So employers must be careful when contacting employees on FMLA leave because, depending on the content and extent of the communications, these actions can expose employers to possible wage and hour lawsuits, FMLA interference claims, and even FMLA retaliation claims.
Q: Does that mean all contact with the employee is prohibited?
A: No. Employers aren’t prohibited from contacting employees about work-related matters so long as such contacts are a few short phone calls or emails to request or to pass on knowledge, or to seek updates on work projects. From an FMLA standpoint, those contacts likely don’t amount to interference. However, employers shouldn’t request or expect employees to perform any substantial amount of work while on leave.
Q: If a workplace investigation requires or would be aided by the participation of an employee on FMLA leave, may the employer require the employee’s participation?
A: Concerns about workplace behavior often wait for no one, especially considering the necessity of prompt and thorough investigations. Courts have held that employers may require employees on FMLA leave to participate in a workplace investigation (by phone and/or in person) so long as the employer can prove that it’s following its standard internal investigation procedures, and that it would have taken the same steps absent the employee’s FMLA leave. Of course, employers need to be realistic that even though business needs might necessitate the completion of an investigation while the employee is on leave (and that’s not always to be assumed where the investigation isn’t pressing or the employee is shortly set to return), the employee’s health may preclude their inclusion.
Q: How are such contacts with the employee to be handled in terms of employee compensation and leave allotment considerations?
A: The communications will count as hours worked for wage and hour considerations, and the employee should be compensated for such. So the employer needs to advise the employee to report his or her time spent on the communications process as hours worked. As far as FMLA leave allotment concerns, any time that the employee spends by phone, email or in person in these communications should be credited to the employee and shouldn’t be counted against the maximum leave time allowed by law.
Q: May an employer communicate with an employee on FMLA leave to discuss his or her return to work?
A: Employers may contact employees on FMLA leave to discuss updates regarding the employee’s situation and the employee’s return date. The employer’s representative needs to keep these communications to a purely information-seeking and non-aggressive tone. Anything more than that could be misunderstood by the employee as pressure to return to work, which could violate the FMLA. Employers will want to document such communications via email and in writing in advance of the employee’s exhaustion of FMLA leave to facilitate and expedite the accommodation process under the Americans with Disabilities Act or other relevant disability and sick leave laws, if appropriate.