Q. What are the employer’s rights in contacting employees during their? Can we ask how they are doing? Can we expect they will stay at home recuperating in accordance with the doctor’s direction? — Terry, New Jersey
A. Your rights to contact an employee on anleave are somewhat limited. Some employees have brought FMLA interference claims against employers who reached out, for example, to ask about the status of work projects. For that reason, most employers try to keep contacts with the employees who are on leave to a minimum.
There are some basic ground rules about FMLA leave: First, employees are not expected to stay at home while on leave. Some even take jobs that they are able to perform while they recuperate. Your ability to contact employees on leave for “updates” on their condition is also limited. If a physician says the person must be out for six weeks, for example, you should not do more than inquire as that date draws near whether they expect to be released to return at that time.
On the other hand, if the FMLA leave is intermittent, you can require regular communications and updates about the need for leave, especially when foreseeable (such as planned physician visits). If you have a good-faith reason to believe that an employee is engaging in fraud, the law does allow you to follow up and investigate. Download our free report, FMLA Intermittent Leave.
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