One of the most frequently cited (and most difficult to answer!) inquiries pertaining to the management of the Family and Medical Leave Act (FMLA) is the ability to communicate with an employee on FMLA. When an employee is out on leave, it’s quite likely that questions will arise: where is that file they were working on? Who is the appropriate contact for the XYZ contract? Though it may be tempting to send an email or text to communicate with an employee on FMLA, think twice before you act! Why?
While the FMLA does not establish clear-cut guidelines or rules pertaining to this, the courts have shown that contacting employees can expose employers to risk. This may include wage and hour lawsuits, FMLA interference claims, or potentially even FMLA retaliation claims! Of course, these risks are based on the situation: the extent of the communication, the nature of it, and so forth. However, it’s always best to comply with the best practices of the FMLA … and that’s where we come in!
Here’s your breakdown of what forms of communication during FMLA are acceptable, and which things are better left unsaid…
Transferring of Institutional Knowledge
A few brief phone calls or emails that are designed to request institutional knowledge will likely not amount to FMLA interference. This is based on court rulings, including Massey-Diaz v. University of Iowa Community Medical Services (2016), which reiterated that “for purposes of summary judgment, courts have drawn the line along a distinction between, on the one hand, receiving nondisruptive communications such as short phone calls requesting the employee to pass on institutional knowledge or property as a professional courtesy, and, on the other, requiring the employee to complete work-related tasks or produce work product.” This distinction is generally a good rule of thumb. That being said, if your employee is off of work due to excessive stress, burnout or overwork, any conversation at all is likely to be seen as harmful. We recommend you exercise the utmost caution here.
Working While on Leave
As you may have guessed from the discussion thus far, you may not ask an employee to work while on FMLA. As we’ve discussed before, the decision to take an FMLA leave is often extremely difficult for the employee. It could mean that they are very ill, or someone in their family needs their attention. Be sensitive and empathetic to this, and let them have their time off.
While it may not seem like much to you to ask your employee to come into the office, whether that be for a meeting or what have you, this is not advisable. Under the law, employers may not require an employee to work while on leave - any act like this could be considered work.
When Will They Be Returning To Work?
One of the most likely reasons for wanting to communicate with an employee on FMLA is to get a grasp of when they expect to return to work. Avoid this pitfall. Under the FMLA, your employee is entitled to up to 12 weeks of unpaid leave - therefore you should prepare for that absence to last the amount of time that they were certified for. Of course, it may very well not. But you should continue on without the employee and let them focus on dealing with the conditions that have qualified them for FMLA in the first place.
That said, if you’d like to reach out to them near the end of their leave entitlement to discuss any potential accommodations that need to be made under the Americans with Disabilities Act (ADA) or a more general return to work program, this is generally acceptable, and often encouraged. Just keep in mind that any discussions regarding an employee’s return should be information-seeking, and not at all aggressive, as this could easily be misconstrued by the employee as pressure to return.
The bottom line is this: reasonable, regular communication regarding the employee’s status, and checking in to see how they are doing, are not considered violations. Additionally, so long as this is identified at the time of leave request, the law gives employers the right to receive regular reports from their employees regarding the progress of their recovery, rather than simply waiting until the end to assess a need for accommodation. Moreover, it is actually recommended that you be proactive, and not wait until after an employee is scheduled to be back from FMLA, before considering ADA accommodations.
Additionally, keep in mind that contact with employees on leave regarding work matters are counted as time - and these communications should count as working hours for wage and hour purposes.
And last, but most certainly not least, remember the age-old lesson of the Golden Rule. Treat the employee on FMLA as you would want to be treated during a similar difficult situation: respect their privacy, health and safety.
Founded in 1987, Presagia has a long history of helping organizations solve complex business problems with easy-to-use solutions. Today, this means providing cloud-based absence management solutions that enable organizations to be more efficient, control lost time and risk, and strengthen compliance with federal, state and municipal leave and accommodation laws.