CAN AN EMPLOYEE BE REQUIRED TO WORK DURING FMLA LEAVE?

The Family and Medical Leave Act requires covered employers to provide eligible employees with leaves of absence for a number of qualifying reasons.  A leave can be up to 12 weeks and in some cases involving military service members the leave can be longer.  

The question is can the employer require an employee to work during a leave of absence?

The Family and Medical Leave Act establishes a minimum labor standard requiring covered employers to provide leave in accordance with the statute’s provisions.  In addition, the Act makes it unlawful for an employer “to interfere with, restrain, or deny the exercise of or the attempt to exercise any right provided” (29 USC 2612(a)(1)), under the statute.  While the U.S. Department of Labor has not weighed in specifically on the question of whether an employee can be required to work, several courts have dealt with the issue.  

The bottom line is that there are things that an employer can ask an employee to do while on FMLA leave.  For example, the employer can make contact with the employee to discuss relevant matters.  However, it would likely be considered interference for an employer to require an employee to actually come into the office or actually work remotely from home while on FMLA leave.  

Examples of things an employer can ask while an employee is off work on FMLA leave include making an occasional call to an employee as a “professional courtesy” that allows the employer to review such things as leave status.  

The employer can also contact an employee and make inquiries related to locating files and other information on matters the employee may be working on.  The employer may also pass information to the employee related to the status of pending matters or general company information. 

At the same time, it is also clear that “asking or requiring an employee to perform work while on a leave can constitute interference” (Smith-Schrenk v Genon Energy Systems, (U.S. District Court, Southern District of Texas, January 12, 2005, slip opinion, page 20)).  While an employee has no absolute right to be left “completely alone” while on leave, any requirement beyond “de minimus contact” could result in employer liability.  

In conclusion, employees who are eligible for qualifying FMLA leave and who take such leave have a right to the leave benefit as stated in the statute.  Employers must avoid interfering with or denying those rights.  Before assigning the work to an employee on FMLA leave, the employer must thoroughly consider whether the assignment is likely to be considered interference or restraint of the rights under the statute.