Can We Talk? Avoiding Legal Land Mines with Employees on FMLA Leave

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Question: A key employee is out on FMLA leave. An issue has come up that no one else at our workplace seems able to address. We think the employee on leave could easily speak to it. Is there any problem with contacting the employee?

Answer: From the FMLA’s standpoint, employers are forbidden from interfering with the employee’s exercise of his or her FMLA rights. The FMLA does not legally prohibit contact with employees on leave, but it does ban asking an employee to perform company work while he or she is on FMLA leave. A short phone call to request knowledge or provide updates likely would not amount to “performing work,” but you should reach out to any employee who’s on FMLA leave with caution and only when absolutely necessary. Depending on the content and extent of the communications, doing so could expose you to wage and hour lawsuits, FMLA interference claims or FMLA retaliation claims.

FMLA Intermittent Leave

If you have no alternative but to contact an employee on FMLA leave, remember:

  • Limit contact as much as possible to avoid legal repercussions.
  • You may not require the employee to work.
  • Communicate by phone. The Department of Labor, which oversees FMLA, is less likely to view a phone call as interference with the employee’s leave than, say, a request for him or her to come in to the office.
  • Document all communications with the employee in writing (email is acceptable) before the FMLA leave runs out.
  • If a workplace investigation arises while the employee is on leave, you have some flexibility. You can require the employee to participate, but to do so, you’ll have to prove you’re adhering to standard procedures that you would have followed even if the employee were not on leave.
  • When you require an employee to participate in a workplace investigation during his or her FMLA leave period, it’s a best practice to compensate the employee and not count the time spent participating in the investigation toward the employee’s FMLA leave. Handling the interaction in this way minimizes your risk of a wage and hour-related claim. With each investigation, it’s a good idea to contact your human resources consultant to determine the best course of action.

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Anna Minicky

Written by Anna Minicky