Is An Employee Required to Work During FMLA Leave?

I came across a recent Family Medical Leave Act ("FMLA") case out of my hometown, Houston, a few days ago.  The case, Smith v. Genon Energy, highlighted a serious FMLA issue that I want to tie into a bigger article:  Is an employee required to work during FMLA leave?

By way of background, 29 U.S.C. § 2615(a)(1) provides that it is "unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided."  Note that "interfering with" includes "not only refusing to authorize FMLA leave, but discouraging an employee from using such leave." 

Now the court in which Smith v. Genon Energy was pending, the District Court for the Southern District of Texas, established that the Fifth Circuit had not previously considered whether requiring an employee to perform work while on FMLA leave amounted to interference.  As a result, it  became important to look at how courts in other circuits have interpreted the issue. 

Employers can breathe easy knowing that it is generally held that reasonable contact limited to inquires about the location of files or passing along institutional or status knowledge will not interfere with an employee's FMLA rights.  Perhaps most importantly, there is "no right in the FMLA to be left alone" or be completely relieved from responding to an employer's discrete inquiries.   (O'Donnell v. Passport Health Communications, Third Circuit).  For instance, a request for materials from an employee is not an impermissible demand for work during FMLA leave.  (Sabourin v. Univ. of Utah, Tenth Circuit).  Even an employee taking occasional calls about their job while on leave is a "professional courtesy" that does not interfere with the exercise of FMLA rights.  (Kesler v. Barris, Eastern District of Michigan). 

However, employers should recognize that asking an employee to perform work while on leave can constitute interference.  For instance, asking an employee to perform work related tasks while on medical leave has been held to interfere with an employee's FMLA rights.  (Arban v. West Publishing Corp., Sixth Circuit).  Asking an employee to respond to regular phone calls, come into work for several hours a day, or talking with the employer about sales lead an employee is expected to generate during FMLA leave is unlawful interference.  (Sherman v. AI/FOCS, Inc., District Court of Massachusetts). 

So the moral of the story:  If it looks and smells like work, it probably is!  De minimis contact with employees on FMLA leave likely does not interfere with FMLA rights.  An occasional phone call asking about a file or providing closure on completed assignments is probably allowed.  However, when an employer starts to require an employee do work related tasks while on FMLA leave, such as showing up to the office or working from home for a few hours per week, this likely amounts to unlawful interference with an employee's FMLA rights and exposes the employer to liability.  

Employers, be smart when considering whether to ask an employee to do a work related task while they are on FMLA leave.  FMLA liability issues abound.

Special thanks to FMLA Insights for getting a copy of the Smith v. Genon Energy opinion.