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Employee out on FMLA leave: OK to contact for info on urgent matters

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Employees home on FMLA leave are supposed to be recovering, not performing work. Employers aren’t allowed to pester employees to work during FMLA leave. Requiring the employee to work from home to complete assignments, for example, may amount to interference with the right to take FMLA leave.

But not every contact or request is enough to support a lawsuit.

Brief inquiries on urgent matters that can’t reasonably wait don’t count as interference.

Recent case: Jane was out on FMLA leave when she was targeted in an internal investigation into an outside audit of the accounting system her employer used. Jane refused to participate, citing her FMLA leave and prohibition against being forced to work while on leave.

Later, when she sued over her eventual discharge, she added a claim that her employer had interfered with her right to FMLA leave.

The court said the brief contract asking for her cooperation in an ongoing investigation wasn’t prohibited under the FMLA. (Krause, et al., v. Eihab Human Services, et al., No. 10-CV-898, ED NY, 2015)

Final note: The employer didn’t discharge her for refusing to cooperate during her leave but for unrelated reasons which are still the subject of a lawsuit.

Employers obviously shouldn’t punish workers who refuse to work while on FMLA leave or who point out that asking them to work may violate the law. That would be retaliation for engaging in protected activity and would only add to the employer’s legal problems that began with the request to work.

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