Sure, Joan, you can take a leave of absence, but you’re still going to work while you’re out, right?

Is this problem?  I guess it depends on whether or not you’re Joan. Let me explain.

The Facts

Joan Smith was a manager in the Ethics Department at Genon Energy, a position which required her to investigate alleged ethical violations when they were reported to the Company.  In April 2012, she gave notice that she would need time off for surgery to remove a cyst from her neck. According to Joan, her supervisor then became hostile toward her and, during Joan’s absence from work, required her to perform much of her regular work.

During the two-month FMLA leave of absence, Joan claims that Genon required her to perform 20 to 40 hours of work “updating compliance cases, revising a safety review project and dropping off files at the office.” Based on my rough math, that’s anywhere from 3 to 5 hours worked each week during her FMLA leave.  As the story goes, Joan returned from FMLA leave and resigned one month later. Why? She felt that her supervisor created a hostile work environment upon her return to work.

Joan then sued Genon, claiming that the 20-40 hours worked during her FMLA leave constituted FMLA interference, which she claimed entitled her to a slew of damages. Joan’s lawsuit raised the age-old question many of my clients have raised with me: If I ask my employee to perform any work while they are on FMLA leave, does it constitute FMLA interference?

The court reviewing Joan’s FMLA claims initially answered it this way, as most courts have done:

…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.

Put another way, there is no right under the FMLA “to be left alone” or be allowed to skirt the employer’s “discrete inquiries.”  But if looks like work, it’s gonna be work, and an employee shouldn’t be doing work while on FMLA leave.

The Court Ruling

I found this opinion helpful largely because it collected many recent FMLA cases dealing with situations where the employee allegedly performed work while on FMLA leave:

• Reilly v. Revlon and Kesler v. Barris et al: fielding occasional calls about one’s job is a “professional courtesy” that does not interfere with FMLA rights (FMLA claims dismissed)
• O’Donnell v. Passport Health Communications (pdf): contacting plaintiff was limited to the status of her decision to accept another position within company, the execution of documents related to the decision, and ongoing salary negotiations at the employee’s request (FMLA claims dismissed)
• Sabourin v. Univ. of Utah: requesting that plaintiff return certain materials to the employer, even in the face of alleged caustic comments about his leave request, insufficient to constitute interference. (FMLA claims dismissed)
• Sherman v. AI/FOCS, Inc.: plaintiff required to respond to regular phone calls, came into work for 3 to 4 hours on one day to resolve accounting issues, and was chewed out by supervisor for training procedures in the accounting department is evidence of FMLA interference (plaintiff prevailed at trial)
• Arban v. West Publishing Corp.: checking in with plaintiff on sales leads he was expected to generate during leave also evidence of interference (plaintiff prevailed at trial)

In light of the work Joan apparently had to perform while on leave, the court in this case determined that Joan had presented enough evidence of FMLA interference that a jury would need to decide whether Genon violated the FMLA.  Smith v. Genon Energy (pdf)

Insights for Employers

As we see above, there is no bright line rule about contact between employee and employer during FMLA leave.  As a general rule, an employee on leave should be fully relieved of their work and not asked to perform work while on leave.  That said, as evidenced by the cases highlighted above, it is unlikely to be an FMLA violation when an employer makes sporadic calls to an employee posing general questions or to wrap up a job the absent employee was working on. Similarly, the employer can contact the employee to check on return dates or possible extension of leave.

As in the O’Donnell case above, it also is acceptable to contact the employee to negotiate terms or conditions of employment to help the employee transition back to work. As long as the contact is necessary or related to preserving the employee’s position or coordinating a return, the contact arguably is justifiable.

But let’s document it.  Employers should make clear – in writing – to employees on FMLA leave that they are not expected to nor should they perform work, other than simple ministerial tasks, such as advising co-workers or management regarding the location of files or to update the status of work assignments that continue on after leave begins.  Nine out of ten times, we’ll have no need for the document; but the one time we actually need it, we’ll sure be glad we created the paper trail.  Right?