Asking An Employee On FMLA Leave To Work: Interference Or Not?


by Abbey Moland

Moland_Abbey

amoland@mcgrathnorth.com
(402) 341-3070

The timing of FMLA leave is not always convenient for employers. But, what can a company do when an employee who is important or even essential to a business function goes on FMLA leave before the work has been completed? Although a recent court decision did not directly answer this question, it did frame the issue of how much work-related contact with an employee on FMLA leave constitutes interference with that leave.

The plaintiff in Smith-Schrenk v. Glennon Energy Services worked in the company’s ethics and compliance department. In that department, she was required to work 50 to 60 hours a week. About two years after she began her employment, the plaintiff began missing work in order to care for her mother and because of her own health needs. She first requested intermittent FMLA leave and then asked that the leave be made full-time, or continuous. Sometime later, the plaintiff resigned her employment, but alleged that she had been constructively discharged because of certain actions taken by the company which she claims were designed to lead to her termination. The plaintiff also alleged interference with her FMLA leave and claimed that the company continued to call and email her during her leave, requiring her to work 20 to 40 hours while she was on leave.

The court reviewed the company’s motion for summary judgment and dismissed all the causes except the interference claim related to the plaintiff’s allegations relating to the work she alleged she was forced to perform while on leave. In examining that claim, the court noted that the FMLA makes it unlawful for any employer to interfere with, restrain or deny the exercise of or attempt to exercise, any right provided under the FMLA. The term “interfering with” was found to include not only refusing to authorize FMLA leave, but “discouraging an employee from using such leave.”

The court noted that the general consensus among the courts is that reasonable contact limited to basic, business-related inquiries about the location of files as well as institutional or status-related knowledge will not interfere with an employee’s FMLA rights. Significantly, the court noted that there is no right in the FMLA to be “left alone” or to be completely relieved from responding to an employer’s “discrete inquiries.” Further, it found that fielding occasional calls about one’s job while on leave is a professional courtesy that does not abrogate or interfere with the exercise of an employee’s FMLA rights.

On the other hand, asking or requiring an employee to work while on leave can cross the line into interference. The court noted that by requesting an employee to perform work during FMLA leave, the employer not only discourages the employee from using such leave, but actually precludes the employee from using such leave during that period of time.

The court then concluded that since there was a dispute about whether the plaintiff was actually required to perform work during her leave and, if so, how much work she was required to perform, the matter should go to a jury.

Even though the issue was not specifically decided, the decision in Smith-Schrenk is instructive to employers. In today’s workplace, there are many jobs that an employee cannot simply walk away from, simply given the nature of the job responsibilities or its importance to the company’s function. Inevitably, there will need to be some contact with individuals on FMLA leave in order to gain information or learn about the status of a matter, or even to bring a task or project to closure, even though the employee legitimately is on leave. However, where the contact with the employee involves a request for work beyond the responses to “discrete inquiries” referenced by the court in its initial analysis, employers should tread carefully. Even if the employee agrees to or acquiesces in such work, that may not be enough to justify the employer’s actions and avoid a claim of FMLA interference. Employees may be able to claim that they felt they had no choice and that a refusal to perform could have impacted their job status. Clearly, with respect to job-related contacts with an employee when they are on FMLA leave, “less is more.”

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