An employee wants to do some light work on FMLA leave, like answering emails or joining conference calls. Should we let him?
Quick Answer
Even though employees who work voluntarily and without coercion would be unlikely to prevail on an FMLA interference claim, the safest route for employers is to ban employees from performing work while on FMLA leave.
Legal Perspective
Kollman & Saucier
Timonium, Maryland
No, that risks an interference claim. FMLA leave is just that – leave, says author and employment law attorney Darrell VanDeusen of the firm Kollman & Saucier.
The DOL regulations and cases provide that an employer may require an employee to occasionally check in while on leave, but “work” while on leave is not leave. If any employee “works” two hours one day while on leave during recovery from foot surgery, for example, that cannot count as FMLA leave time.
So it’s possible to convert a lengthy leave to a reduced leave schedule leave to permit someone to work while recovering from a serious health condition, but the “work” box and “leave” should be kept separate.
Relevant Case Law
Massey-Diez v. Univ. of Iowa Community Medical Services
D’Onofrio v. Vacation Publications, Inc.
Reilly v. Revlon, Inc.
HR Insight
Renewed HR
Freehold, New Jersey
When someone is on FMLA, they need to take the time to disconnect from work, according to Sheri Murad, HR Consultant at Renewed HR.
Many employees are worried that they will “miss” something important at work and will want to stay connected. I’ve found that “best practice” is to disable connectivity (emails, conferencing, etc.) while they are out and reinstate it upon their return to work.
If there is a need for them to work while they are out, consider providing intermittent FMLA. In this case, any time the employee “works” would not count against their time out.
Luster Products, Inc
Chicago, Illinois
Allowing an employee to do light work while on FMLA leave could risk an interference claim, according to Senior HR Manager Nia Cannon.
The essence of FMLA leave is to provide a break from work obligations. Permitting work during leave blurs the lines between leave and work, potentially undermining the employee’s entitlement to rest and recovery. It’s generally advisable to clearly communicate that work is not permitted during FMLA leave to mitigate the risk of interference claims.
CertiK
New York, New York
Is the person on intermittent leave? If so, then they can work, says HR Leader Erin ImHof. Otherwise, they should not be doing any work if they are on FMLA.
HR can reach out to the person to discuss their case, but not for purposes of work.
Key Takeaways
- FMLA regulations permit employers to require employees on FMLA leave to report periodically on their status and intent to return to work.
- Employers generally should not ask employees who are on FMLA leave to perform work.
- Some courts have held that employers may make limited work-related inquiries to employees who are on FMLA leave, such as a request for the location of a particular file.
- Other courts have decided that there is no FMLA interference if an employee who is on FMLA leave voluntarily chooses to work during that time.
- The safest path for employers to take to avoid an FMLA interference claim is to not permit an employee on FMLA leave to perform any work.
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