May an employer contact an employee who is out on approved Family and Medical Leave Act (FMLA) leave?

Author: Melissa Burdorf, XpertHR Legal Editor

It depends. There is no concrete answer for contact between employee and employer while an employee is on FMLA leave. Generally, an employee out on FMLA leave should be left to enjoy his or her FMLA rights (not interfered with) and not be asked to perform work while on leave. An employer should not make an employee feel like he or she has to choose between burning the midnight oil (working) and meeting his or her family and medical needs. An employer should keep in mind that the FMLA was designed to ensure that an employee should not have to worry that his or her job will be risked if he or she takes approved FMLA leave.

An employer may not, among other things, interfere with the efforts of an employee to exercise FMLA rights. Examples of interference include:

  • Discouraging an employee from using FMLA leave;
  • Using the fact that an employee took FMLA leave as a negative factor when making decisions about hiring, promotions or disciplinary actions; or
  • Not giving a pay raise to an employee on FMLA leave who otherwise would be entitled to it.

Many times, an employer will have work-related questions that come up when an employee is on an approved FMLA leave that only the employee can answer. Generally, an employer may call an employee with quick, general questions that are limited in scope, such as closing up open items, providing computer passwords or passing on institutional knowledge to a temporary employee. However, the amount of contact and the depth of what the employer asks the employee is where it gets dicey (also known as walking the interference tightrope). An employer should proceed with caution here as a jury may be deciding its fate if the employee chooses to file an FMLA claim.