When Is It Legal For Employers To Require Employees On FMLA To Stay In Contact With Work?

By harley erbe

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As Des Moines employment lawyers we frequently receive calls regarding the nuances of the Family and Medical Leave Act. The FMLA’s basics are well-understood by employees and employers, but the devil can be in the details when trying to navigate a complex federal law like the FMLA, with its many statutory sections, interpretive regulations, and cases. From an employee’s perspective, misjudgment about the extent of employees’ FMLA rights can lead to bad decisions that cause worse employment results, including the loss of a job.

One type of case we’ve seen actually begins as a Des Moines wrongful termination law question but is really an FMLA matter. An employee goes on an FMLA absence, is asked to do work for the employer while on FMLA, refuses to do so, and is fired as a result. FMLA violation, yes or no? Let’s look at that question in more detail.

The FMLA entitles qualifying employees to take up to twelve weeks unpaid leave, without fear of termination, when the leave is taken for a serious health condition. The FMLA prohibits employers from interfering with, restraining, or denying the exercise of a right under the FMLA. To prevail on an FMLA interference claim, employees must prove that: (1) they’re an eligible employee under the FMLA; (2) their employer is an FMLA-qualifying employer; (3) they were entitled to leave under the FMLA; (4) they gave the employer notice of their intention to take FMLA-protected leave; and (5) the employer denied the FMLA benefits to which the employee was entitled.

Employers can interfere with an employee’s FMLA rights even if they approve the leave. A common occurrence is when an employee requires an employee to stay in contact with the workplace while on an FMLA absence. That can lead to the question of whether the employer is interfering with the employee’s leave by requiring the employee to work while on leave. That’s a murky area in which several courts over the past few years have issued decisions that try to delineate between permissible contact with employees out on an FMLA absence and contact that crosses the line into making the employee work while on leave, thus “interfering” with the leave.

This issue has to be decided on a case-by-case basis. Here are the general principles that courts usually follow when deciding whether employer contact with an employee on an FMLA absence has gone too far: The ability to take FMLA leave is not conditioned upon the willingness of the employee to remain “on call” to the employer. Asking an employee to perform work-related tasks while on FMLA leave is generally determined to be interference with the employee’s FMLA rights. But fielding occasional calls about one’s job while on leave is a professional courtesy that does not abrogate or interfere with the exercise of an employee’s FMLA rights. When such contact is limited to the scope of passing on institutional knowledge to new staff, or providing closure on completed assignments, employers do not violate the FMLA by making such calls. As you can see, this is a very fine line that’s easy for employers to accidentally cross because it’s not always clear exactly where the line is.

So what are examples of employer contacts with absent employees that don’t constitute FMLA interference? Courts have not had an issue with minor contacts, such as providing computer passwords, helping locate files, updating the status of work assignments at the time that the leave began, or assisting with scheduling and logistics for employees who will be covering the absent employees. What’s not okay? Examples from the cases include requiring an employee to complete certain training before returning to work, complete employee evaluations of subordinates, perform data entry, and in general perform any of the functions of the job that the employee to take medical leave.

Please feel free to contact us if you need the assistance of a Des Moines Family and Medical Leave Act lawyer.

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