Contacting Employees on FMLA Leave: Where Should You Draw the Line?

A lawsuit that accuses an employer of pressuring an employee to work while on FMLA leave will proceed following a federal court’s decision to reject the employer’s immunity defense.

While much of the ruling is devoted to the intricacies of the legal topic of sovereign immunity, for employers it raises a much more nuts-and-bolts – and potentially applicable — question: What are the rules when it comes to contacting an employee who is on FMLA leave?

Employee Takes FMLA Leave for Family Crisis

Kristie Williams was working for the University of Alabama at Birmingham when, as the court’s ruling aptly put it, “a family crisis upended her job.”

The crisis: While serving in the Marine Corps in Hawaii, Williams’ daughter was allegedly sexually assaulted by a superior officer.

Williams applied for FMLA leave to take care of her daughter in Hawaii. The university granted her request – but allegedly did not leave her alone after the leave began.

Williams says the university sent her work-related emails and requests to help with office projects. She adds that she told colleagues that she should not be working, only to be met with increasingly critical feedback from supervisors.

Her supervisors even went so far as to place her on “development plans” and tell her she needed to check in via weekly video conference calls, Williams said.

She also said that the criticism continued after she returned to work. She eventually resigned, believing “a pink slip was inevitable,” the court’s decision says.

FMLA Lawsuit Alleges Interference, Retaliation

Williams sued the Board of Trustees of the University of Alabama, the university’s parent institution, to allege FMLA claims of interference and retaliation.

The board filed a motion to dismiss, arguing that as an arm of the state, it enjoys sovereign immunity from the suit.

The trial court denied the board’s motion. To reach its decision, it first characterized Williams’ leave as family-care leave. It then noted that the U.S. Supreme Court has held that state defendants are not immune to FMLA claims involving this type of leave.

Court: Immunity Defense Doesn’t Apply to Military Leave

On appeal, the board said the Supreme Court ruling did not apply because Williams had invoked another type of leave: active-duty leave, which is a form of military leave. The Supreme Court ruling on immunity does not apply to that type of leave, it insisted.

The U.S. Court of Appeals for the Eleventh Circuit decided that the board did not enjoy sovereign immunity regardless of whether the Supreme Court ruling applied. It found that under a legal doctrine called the “plan of the Convention doctrine,” Alabama has implicitly waived its immunity to FMLA claims raised under the statute’s provisions relating to military leave. When Congress enacted those provisions, it was exercising its constitutional authority to raise and support a military, the court said.

“[W]hen Congress validly legislates pursuant to its power to raise and support a military, it may authorize suits against the states – without regard to their sovereign immunity,” the court explained.

The appeals court upheld the trial court’s decision against the board and remanded the case for further proceedings.

2 Practical FMLA Issues for HR

Legal technicalities aside, this case provides two important takeaways for HR.

1. Legal Obligations for Military Family Leave

First, be aware of the FMLA’s provisions relating to military family leave. Those provisions give eligible employees the right to take FMLA leave for two types of military family leave: qualifying exigency leave and military caregiver leave.

The first applies when an employee’s spouse, son, daughter or parent who is an Armed Forces member is on (or soon will be on) active duty in a foreign country or in international waters.

The second – military caregiver leave – is available to any eligible employee who is the spouse, son, daughter, parent or next of kin of a servicemember who has a serious injury or illness.

This DOL guide on the FMLA has more in-depth information about military family leave under the law.

2. Communicating with Employees on FMLA Leave

Moreover, this lawsuit’s allegations raise a commonly encountered question: To what extent can employers contact employees who are on FMLA leave?

Requiring employees on FMLA leave to perform work-related duties can lead to an FMLA claim of interference or retaliation. Employers cannot interfere with an employee’s rightful exercise of FMLA rights or retaliate against them for doing so.

But the question of when contact with an employee on FMLA leave becomes unlawful interference or retaliation does not have a bright-line answer.

Instead, court decisions have produced a rule indicating essentially that the answer depends on the type and degree of contact and level of intrusion.

What Employers Can — and Can’t — Do

Here are examples of conduct that courts have found do not cross the FMLA line:

• Having employees field occasional calls about their job, which a court called “a professional courtesy.”
• Asking the employee to provide a previously prepared report and spreadsheet.
• Requesting keys and passwords.
• Asking the employee to sign forms, when the request was initially made before the leave began.

But there is a line. Examples of conduct that may go too far include:

• Asking the employee to update files, complete a project and deliver the project to the office.
• Requiring the employee to provide customer lists and meet in person.
• Making “numerous phone calls” to the employee about work that needed to be done immediately.

Think of it as a sliding scale, with one end having you check in occasionally to see how an employee is doing and the other having you demand immediate performance of regular job tasks and perhaps even personal attendance at meetings.

The closer that an employer gets to the latter end of the scale, the more likely they are to find themselves in legal hot water.

It’s safest to totally relieve an employee of their job-related duties while they are on FMLA leave – and to limit contact with them.

If the allegations presented by the plaintiff in the Williams case are true, the employer’s conduct leans toward the wrong side of the legal line.

One final note: An employer will not be on the hook for an FMLA interference claim if an employee on leave works voluntarily.

Williams v. Bd. of Trs. of the Univ. of Ala., No. 23-11286, 2025 U.S. App. LEXIS 2367 (11th Cir. 2/3/25).