Navigating employee leave issues can be a daunting feat for in-house counsel and human resources departments. One challenging and oft-overlooked situation rife with the potential for legal issues involves contact between employers and employees who are out on leave under the Family and Medical Leave Act (FMLA). Below are four common questions and answers regarding communications with employees during their FMLA leave.
Q: Can an employer contact an employee or ask him or her to return to work while he or she is on FMLA leave?
A: The FMLA itself and its interpreting regulations typically contain all of the answers you need to know, so that you don’t have to give the proverbial answer of “It depends.” The FMLA does not establish clear boundaries for contact between employers and employees while employees are on FMLA leave; however, 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. Under the FMLA, employers are prohibited from interfering with an employee’s exercise of his or her FMLA rights. In part, this means employers cannot require employees on FMLA leave to work while on leave. This does not mean employers are absolutely prohibited from contacting employees about work-related matters—a few short phone calls to pass on or request knowledge or updates likely do not amount to interference, for example—but employers should not ask employees to perform any work while on leave. Asking employees on FMLA leave to come in to the office is problematic because it is more burdensome and more likely to be interpreted as work than a short phone call, which is a modest request. Consider as well whether contact with an employee using intermittent FMLA leave who will quickly return to work is really necessary and could be interpreted as discouraging (or interfering) with usage of the current leave or future leave.
Q: Is it lawful for an employer to ask an employee who is out on leave to come in to work —or to call or email the employee—to discuss the possibility of a promotion or to encourage the employee to apply for a new position?
A: There is no legal reason why an employer would be prohibited from discussing the possibility of a promotion (or a higher salary or other term or condition of employment) with an employee on FMLA leave, as long as reinstatement rights are kept in mind. Again, as a practical matter, it is probably better to discuss that possibility with the employee over the phone or the employee’s personal email as opposed to calling the employee in to the workplace. Such de minimus contacts not requiring performance of work do not benefit the employer per se and likely would not materially interfere with leave. However, if the employer were to require the employee on FMLA leave to perform physical tests or interviews inconsistent with the scope of leave or his or her restrictions, that could present practical and even legal concerns.
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 depending on the situation at hand. Calling an employee on FMLA leave in to work as part of a workplace investigation not only presents the possibility of an interference lawsuit but also a retaliation lawsuit, especially if the employee’s own conduct is at issue. However, 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 is following its standard internal investigation procedures and that it would have taken the same steps absent the employee’s FMLA leave. If an employee on FMLA leave participates in a workplace investigation, his or her employer may not want to count that time against the employee’s FMLA allotment and instead compensate the employee fully for his or her time to avoid any wage-related issues or claims. 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 is not pressing or the employee is shortly set to return), the employee’s health may preclude their inclusion.
Q: May an employer communicate with an employee on FMLA leave to discuss his or her return to work?
A: Employers may want to contact employees as little as possible while on FMLA leave to avoid legal land mines, including wage and hour issues. Nonetheless, employers may call employees on FMLA leave to discuss other issues, such as updates regarding the employee’s situation and the employee’s return date. Employers may 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, as needed.
