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Need to contact employee out on FMLA leave? Be sure to document reason for the call

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in FMLA Guidelines,Human Resources

Employees on FMLA leave are entitled to be left alone. Super­visors shouldn’t send work home with the employee or call constantly to check up. That could be considered FMLA leave interference.

That doesn’t mean, however, that you can’t get in touch with the em­­ployee about important and urgent matters or enforce your broader call-in policies if you subject all employees who are off to the same rules. Just make sure you note the reason for the call so you can justify it later if challenged.

Recent case: Roseanne worked for years as a supervising secretary for a large law firm. Fifteen years into her career, she underwent treatment for alcoholism, using the resources available through the firm’s employee assistance program.

Fast forward to the recession that began in 2008. By then, Roseanne was working the night shift, where she was assigned shortly after she became sober. She supervised numerous night secretaries who ­prepared documents for attorneys’ use the next morning. But the attorneys were becoming more ­computer-literate, so she had less and less work to supervise every night. Plus, around that time, the firm’s revenue fell by 20%.

Then Roseanne broke her toe and took several weeks of FMLA leave. While home, she received two phone calls from her supervisor, which she claimed sounded suspicious, as if the firm believed her broken toe was somehow related to her past history of alcohol abuse.

Then, when she returned to work, she heard a subordinate comment that Roseanne was “drunk with power” and another state that she felt as if she were at “an AA meeting.” Roseanne took them as comments on her alcoholism.

Meanwhile, the firm downsized and concluded Roseanne’s services were no longer necessary.

She sued, alleging, among other claims, that she had been harassed at home on account of a perception she was an alcoholic. That, she claimed, violated both the FMLA (as interference with leave) and the ADA (as perceived disability discrimination).

But the firm told the court that the two phone calls were made to inquire about paperwork that Roseanne had to turn in so she could continue to receive salary continuation benefits. Plus, the firm argued the comments had nothing to do with her past alcohol problems, but were merely stray and unrelated remarks.

The court agreed and tossed out the case. (Zito v. Fried Frank, No. 09-9662, SD NY, 2012)

Final note: The court also con­­sidered the process the law firm used to select employees for layoff. The firm delegated decision-making to the secretarial supervisor, who had been with the firm for more than 30 years. She, in turn, had wide discretion, as well as instructions to consult HR as needed. No formal plan ever existed.

The court looked carefully at Roseanne’s layoff and concluded that neither age, sex nor any other protected characteristic played a part. The court said it preferred formal handling of layoffs, but ­employers can use more casual processes if they’re willing to take the risk. In this case, that meant lengthy litigation, but vindication in the end.

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