To call or not to call: Contacting workers on FMLA leave

Navigating employee leave issues can be a daunting feat for HR departments. One challenging and oft-overlooked situation rife with the potential for legal problems involves contact between employers and employees who are out on leave under the FMLA.

Here are four common issues involving communications with employees during their FMLA leave.

Asking worker to come in

The FMLA does not establish clear boundaries for contact between employers and employees while employees are on FMLA leave.

However, employers must be careful when contacting employees who are on FMLA leave because, depending on the content and extent of the communications, these actions can expose employers to possible wage-and-hour lawsuits, FMLA interference claims and even FMLA retaliation claims.

Under the FMLA, employers are prohibited from interfering with an employee’s exercise of his or her FMLA rights. In part, that means employers cannot require employees on FMLA leave to work while on leave.

FMLA Compliance D

That does not mean employers are absolutely prohibited from ever contacting employees about work-related matters—a few short phone calls to pass on or request knowledge or updates likely do not amount to interference, for example.

But employers should not ask employees to perform any work while on leave.

Asking employees on FMLA leave to come in to the office is problematic because it is more burdensome and more likely to be interpreted as work than a short phone call, which is a modest request.

Consider as well whether contact with an employee using intermittent FMLA leave who will quickly return to work is really necessary and could be interpreted as discouraging (or interfering) with the use of current or future leave.

OK to call in for good news?

There is no legal reason why an employer would be prohibited from discussing the possibility of a promotion or a higher salary or other term or condition of employment with an employee on FMLA leave—as long as reinstatement rights are kept in mind.

Again, as a practical matter, it is probably better to discuss that possibility with the employee over the phone or via the employee’s personal email as opposed to calling the employee in to the workplace. Such de minimis contacts, which do not require performing work, do not benefit the employer per se and likely would not materially interfere with an employee’s FMLA leave.

However, if the employer were to require the employee on FMLA leave to perform physical tests or interviews inconsistent with the scope of leave or his or her restrictions, that could present practical and even legal concerns.

Investigations and FMLA leave

Concerns about workplace behavior often cannot wait, especially considering the necessity of prompt and thorough investigations into some situations, such as allegations of sexual harassment.

Calling an employee who is on FMLA leave to come into work as part of a workplace investigation not only presents the possibility of an interference lawsuit but also a retaliation lawsuit, especially if the employee’s own conduct is at issue.

However, courts have held that employers may require employees on FMLA leave to participate in a workplace investigation (by phone, in person or both) so long as the employer can prove it is following its standard internal investigation procedures and that it would have taken the same steps even if the employee had not taken FMLA leave.

If an employee on FMLA leave participates in a workplace investigation, his or her employer may not want to count that time against the employee’s FMLA allotment and instead compensate the employee fully for his or her time to avoid any wage-related issues or claims.

Of course, employers need to be realistic. Even though business needs might necessitate the completion of an investigation while the employee is on leave (and that’s not always to be assumed where the investigation is not pressing or the employee is set to return to work soon), the employee’s health may preclude their inclusion.

Discussing return to work

Employers may want to contact employees as little as possible while on FMLA leave to avoid legal land mines, including wage-and-hour issues.

Nonetheless, employers may call employees on FMLA leave to discuss other issues, such as updates regarding the employee’s situation and the employee’s return date. Employers may want to document such communications via email and in writing before the employee exhausts his or her FMLA leave to facilitate and expedite the ADA accommodation process or other relevant disability and sick leave laws, as needed.

Nonnie L. Shivers is a shareholder in Ogletree Deakins’ Phoenix office.