Must Employees on Leave Be Left Alone?

By Lehr Middlebrooks Vreeland & Thompson, P.C.

January 26, 2018

Issues often arise during the course of an employee’s FMLA absence where the employer needs to contact the employee or may want to request the employee to perform some work. What are the employer’s rights to have such discussions or requests when an employee is on FMLA leave?

Remember that when an employee is on FMLA, an employer may not take action that would be viewed as potentially interfering with or retaliating against the employee for using FMLA. Furthermore, work performed by an employee while on FMLA is considered compensable time under the Fair Labor Standards Act.

If an employee has complied with FMLA certification requirements, an employer may not require the employee to perform work while on leave. Then the next question is may the employer ask the employee to perform work while on FMLA leave? Yes, the employer may ask that, but note that if the employee says no, the employer must be sure not to engage in behavior that could be viewed as retaliatory or to discourage the employee’s use of FMLA. If incidental questions arise, it is permissible for an employer to contact an employee, whether over the phone or via email. For instance, it is perfectly acceptable to ask an employee on FMLA leave where she has stored a file.

There are circumstances where during an employee’s leave, whether FMLA, annual or other, the employee may miss out on an opportunity or information if the employer does not contact the employee. For example, if an employer wants to consider an employee for training or promotion, and that employee is on leave, the employer has the right to contact the employee to discuss it. If there is a benefits change, benefits survey, or other similar benefits-related issue that arises during the employee’s leave, again, the employer has the right to contact the employee. And, if an investigation arises during the leave where it is necessary for the employer to speak with the employee, the employer has the right to do so. That would be considered working time, but the employer does not have to delay the investigation until the employee returns, nor does the employer have to conduct the investigation without the benefit of communication from that employee. An exception to the latter point is if the employee’s FMLA or other situation is so significant that the employee is unable to participate or respond to the employer.

What if circumstances arise where, during the course of the leave, the employer becomes aware of information which may result in employee discipline or discharge? Employers have a variety of protected options. One is to move forward at that point in time and communicate the disciplinary decision to the employee. This is especially appropriate in the case of a discharge decision where there is no doubt to the employee’s culpability. Another is to document that the discipline or termination decision has been made, but that the employee will be notified when the employee’s leave ends. Some employers prefer the latter approach out of concern that if it is communicated during the leave, the employee may extend the leave or the employee may experience further distress during a difficult time. Just establish internally the date the decision was made and why, and then communicate it with the employee upon the employee’s return.