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Beware letting work happen on FMLA leave

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in FMLA Guidelines,Human Resources

Depending on the type of leave they take, employees may use time off under the FMLA to recuperate from their own illness or care for sick family members.

The FMLA doesn’t prohibit employers from calling an employee occasionally to ask questions about work-related matters. On the other hand, forcing someone to work from home while on leave may qualify as interference with FMLA leave.

Sometimes, however, employees insist on working even while they’re on leave. That puts employers in a tricky predicament.

Best bet: Tell the employee she shouldn’t worry about work-related matters and keep contact to the bare minimum.

Recent case: Marie worked as a program director for a social service agency. She requested FMLA leave for surgery and recovery, which was approved. Before going out on leave, she sent an email explaining that she would be working from home as needed and would check email periodically.

In fact, she regularly inserted herself into the agency’s work while on leave. Her supervisor, concerned that she should be recuperating, sent her an email that told her to “REST.” Still, Marie insisted on participating in important meetings.

When she returned to work, she was terminated because of funding shortfalls.

She sued, alleging that she had been forced to work during her FMLA leave, which interfered with her rights.

The court tossed out the case after noting that it was Marie who insisted on working, even though her supervisor told her she should rest. (Museau v. Heart Share, et al., No. 12-CV-1851, ED NY, 2014)

Final note: Make expectations clear before employees go on FMLA leave.

Arrange for all essential work to be completed by someone else. Assure the employee she should spend the time resting or taking care of her sick family member.

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