Employment and Labor Law News: Working While on FMLA
By Rudman Winchell Attorney Anne-Marie Storey, Esq.
WORKING WHILE ON FMLA
Claims of interference with FMLA leave are becoming more common. One issue that can arise is the extent to which an employee is asked to or voluntarily performs any work at all while on FMLA and where the line is when such work, either requested or permitted, starts to “interfere” with the leave.
Suppose an employer contacts an employee who is on an approved FMLA leave for information about her work? Does that type of contact constitute interference with the employee’s right to the leave? As usual, this will depend on the specific facts. The outcome can be influenced by factors such as the amount of contact, the way in which the contact is made, any parameters on responding to the contact, and the reason for the contact. At least one court (not in Maine) has held that asking an employee on leave to respond to occasional calls about the job is a “professional courtesy” that does not interfere with FMLA rights, particularly where the subject matter is confined to topics such as “passing on institutional knowledge to new staff” or “providing closure on completed assignments”. Assuming Maine accepted the same parameters, an employer could initiate minimal contact with an employee for minor, job-related information and probably would not interfere with their leave rights. Because it is unclear where the line is, though, and because all employees are likely to react differently to any such contacts, employers should definitely exercise caution in making any such contact and perhaps address this issue directly with the employee before or just after the leave time begins.
What happens if an employee voluntarily performs work while on an approved FMLA leave by reading, responding to, or initiating email or telephone contacts with the employer or with clients? Should an employer permit this conduct? Again, the answer will depend on the specific facts. As long as the employee is doing the work voluntarily, it should be difficult to characterize that as interference by the employer. The scenario does raise other issues, though. For instance, how does such work affect the pay for that individual? If the employee is non-exempt, he would have to be paid for all work time, regardless of whether he was asked to do the work. If the employee is exempt, the FMLA regulations and the FLSA allow for reduction of his salary for FMLA time without destroying the exemption. So, any work time would have to be factored into how much of a reduction is appropriate in any week. This still leaves the issue of whether it is appropriate for the individual to be working and how to properly account for that time. One way to address this is with a policy that makes it clear such work is not required but that if it is performed the employee is responsible for accounting for such work done each week, to include a description of the work done and the time spent doing it.
Employers must be proactive in controlling what an employee does on their behalf during FMLA leave time. Although it will be tempting to allow or encourage an employee on leave to either be available for questions or to perform actual work, doing so can give rise to interference claims and should be handled very carefully and with appropriate planning.