So, What Exactly is FMLA Interference?
Most employers today know what the Family and Medical Leave Act (“FMLA”) requires, i.e. job protected leave for employees working for employers with 50 or more employees. But most employers know very little about what the law prohibits, namely both interference with and protection against retaliation when an employee exercises FMLA rights. As part of my practice, a client recently posed a very interesting question about possible FMLA interference: when an employee is out on FMLA leave, can the employer require an employee to periodically check in to update the employer on their medical status or does having that sort of interaction with the employee constitute wrongful FMLA interference? The answer to this question, like many in this area of the law, requires an employer to proceed with some caution.
Legally, an employee on FMLA leave is neither entitled to be “left alone,” nor is completely relieved from responding to an employer’s discrete inquiries. Fielding occasional calls about one’s job while on leave is deemed a professional courtesy that does not abrogate or interfere with the exercise of an employee’s FMLA rights. When limited to the scope of passing on institutional knowledge to new staff, or providing closure on completed assignments, or even giving a quick update on the employee’s on-going medical status, employers do not violate the FMLA by making such calls or expecting employees to keep them updated on such topics. Moreover, if the employer has designated call in procedures or policies that an employee must follow while on FMLA, the employee is expected to follow them if they do not conflict with the leave rights granted under the FMLA. A big legal “no-no,” however, is assigning any work to or expecting that the employee will perform any job services while on leave. That is a sure invitation for an interference claim.
While contacts with an employee are allowed while on FMLA, the real legal difficulty is that there is no legal standard or consensus on the amount of potential contacts an employer can have with an employee while out on FMLA leave. The cases talk about “de minimis” contacts not interfering with FMLA use without stating how many of those kinds of contacts can happen. So, what exactly is a sufficiently small enough number to not get the employer into trouble? Over 12 weeks of leave, once a month would seem fine, especially if the employer has a valid reason for the contact, such as a quick question about a work file or confirming an expected return to work date. More than that would likely depend on the presenting circumstances for the required contact. In this area, when all is said and done, seemingly less is better-the fewer times you need to speak to your employee, the better.
Therefore, based upon the foregoing, employees who need to reach out to an employee on FMLA leave are best served by doing so only sparingly and when the contact is supported by a legitimate business reason. And, most importantly, do not demand that an employee perform any sort of work during their FMLA time. Even when the employee volunteers to do so, it is best for the employer to say no to ensure that there is no chance of any misunderstanding by the employee that working on FMLA leave is an expectation of the employer.
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