Oftentimes, employees take FMLA leave with little or no notice. This can leave managers and co-workers in a quandary if they need to find a particular document, or check the status of a pending project, or have a pressing issue to discuss. In these situations, the question arises whether the manager or co-worker can (or should) call an employee who is on FMLA leave to answer a work question.
A growing number of courts have recently considered this issue in the context of an FMLA interference claim brought by an employee whose manager or co-worker calls him or her about work while on FMLA leave. The generally recurring theme in these cases is that contact with an employee out on FMLA leave about work-related issues is the equivalent of an instruction to work, which an employee may feel he/she cannot refuse. Such an instruction, the employees argue, interferes with their right to be away from work on job-protected, FMLA leave and/or acts as a disincentive to take or to use FMLA leave. Put another way, the employees argue, the employer has failed to “respect” the employee’s FMLA “entitlement.” Bell v. Dallas County, 432 Fed. App’x 330, 334 (5th Cir. 2011).
Unfortunately, the FMLA and the accompanying regulations do not specifically address when and under what circumstances an employer may contact an employee while on FMLA leave, other than to say that an employer may require an employee to report periodically on his/her status and intent to return to work. The courts, however, have fashioned some general guidelines. The general consensus among the courts, including several Texas courts, is that “reasonable contact limited to inquiries about the location of files or passing along institutional or status knowledge will not interfere with an employee’s FMLA rights; however, asking or requiring an employee to perform work while on leave can constitute interference.” Smith-Schrenk v. Genon Energy Services, LLC, 2015 WL 150727 (S.D. Tex. Jan. 12, 2015); see also Austin-Shipp v. Taco Bell of America, LLC, 2017 WL 1425605 (E.D. Tex. Mar. 21, 2017). So an occasional phone call inquiring about files, or asking for a password, or even asking a brief question about a pending assignment should not give rise to an interference claim.
On the other hand, asking or requiring an employee to work while on leave or to complete an assignment he/she should have completed before leave began can cross the line into actionable interference. For example, asking an employee on FMLA leave to update files, or to attend a telephonic strategy meeting, or to make sales calls from home have been found to be problematic. So have visits to the employee’s home to discuss work issues. The only exception is where an employee has voluntarily agreed to perform such tasks while on leave. However, the employee’s agreement to do so must be truly voluntary, which may not always be clear. See 29 C.F.R. § 825.220(d) (“an employee’s voluntary and uncoerced acceptance (not as a condition of employment) of a light duty assignment while recovering from a serious health condition” does not violate the FMLA).
The bottom line is that employers who need to contact an employee while on FMLA leave should approach the situation with caution. For anything other than occasional (and brief) de minimis contact with an employee on ministerial matters, employers should refrain from contacting employees on FMLA leave about substantive work issues. In time-sensitive situations, employers may seek the employee’s voluntary consent to perform tasks from home while on leave, but this should be reserved for the truly exceptional case. And, don’t forget, if an employee on FMLA leave is voluntarily performing work-related tasks at the employer’s request, it is very likely to be compensable time and should not be counted against the employee’s FMLA leave entitlement.