Here’s a tricky question for you: Should an employee still be considered on FMLA leave when he’s answering work email or phone calls?
Yes, as long as the employee is only answering email or calls on a sporadic basis, his employer is not in violation of the Family Medical Leave Act.
An employee does not stop reducing his FMLA entitlement during the time he spends answering occasional — emphasis on occasional — work-related emails or phone calls, according to labor and employment law attorney Jeff Nowak, who covered this topic on his FMLA Insights blog.
Generally, courts have found that responding to job-related calls and email while on leave is a “professional courtesy” that does not interfere with an employee’s FMLA leave, says Nowak.
He points out that one federal court recently ruled that an employer did not violate a worker’s FMLA rights by asking the worker to pass on “institutional knowledge” or provide closure to work assignments while on leave.
Nowak also points out that these actions are OK, even if the boss doesn’t know they’re happening.
But it can be a slippery slope. What employers don’t want is for the occasional email or phone call to turn into multiple a day over the course of weeks. That could easily be viewed as placing work requirements on the employee.
The best way to stay in compliance with the FMLA is to put an end to any and all work-related tasks ASAP that are asked of employees when they’re on leave.