Human Resources News & Insights

Can you ask employees to work during FMLA leave? Better be careful

If you’ve got an employee who takes FMLA leave, you may have to check in with him or her occasionally. But be careful not to cross this line. 

If you ask the employee on leave to do anything that remotely resembles “work,” you could find yourself in a situation like this employer.

In  Smith-Schrenk v. Genon Energy, Joan Smith-Schrenk was an Ethics Department manager at Genon Energy.

The problems occurred the moment Smith gave notice that she was taking FMLA leave for a surgery to remove a cyst from her neck. Smith claimed her supervisor was hostile right from the start of the leave request — and even required Smith to perform a large chunk of her regular work while she was out on leave.

How much work? During her two months of FMLA leave, Smith claims she was required to perform 20 to 40 total hours of work on tasks that included “updating compliance cases, revising a safety review project and dropping files at the office.”

Then, following her return to work, Smith resigned within just one month. Reason: Her supervisor created a hostile work environment as soon as she started working again.

Of course, Smith’s didn’t go quietly. Following her resignation, she filed an FMLA lawsuit claiming the hours of work she performed while on leave constituted interference, which the company sought to get dismissed.

What the court said

It should come as no surprise that the court said there was enough evidence of FMLA interference for a jury to have to decide the case. As the court put it:

” … 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.”

The court opinion also referenced a number of recent cases that centered around work allegedly performed while an employee was on leave. Employment attorney Jeff Nowak does an excellent job summing up those court rulings on FMLA Insights.

What you can ask of workers

And we’ve also covered the topic of work on leave in our post on Vess v. Select Medical Corp. In that case, a company found itself facing a lengthy trial because of the amount of work a supervisor assigned an employee on FMLA.

The most noteworthy aspect of this ruling is that the court essentially spelled out the type of work-related activities managers can ask of employees on FMLA leave, which included:

  • passing along institutional knowledge to new staff
  • providing computer passwords
  • seeking closure on completed assignments, and
  • identifying other employees to fill voids.

Asking anything other than that of workers on leave, and employers can end up in a costly legal battle.

In addition to those activities, Nowak points out that employers can also contact an employee on leave to check on return dates, possible extensions of leave as well as to negotiate terms or conditions of employment to help with a back-to-work transition.

In the last example, however, the contact must be necessary or related to keeping the worker’s position open or coordinating his or her return.

Finally, it’s always a good idea to put it in writing that — other than minor tasks such as providing passwords or institutional knowledge — employees aren’t expected to perform any work while on FMLA leave.

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