Protecting New Mexico Employers From Inadvertent FMLA Violations: What Can Your Employee Do (or Not) While on FMLA Leave?

Maybe you have an employee on FMLA leave who just can’t help herself, she has to answer emails and check in with the office. Is this work under the Family Medical Leave Act (FMLA)? Perhaps you need to know where a file is located, and the only person who knows is on FMLA leave. Do you interfere with your employee’s FMLA leave if you call him and ask where the file is located? The answers to these questions are more difficult than they may seem at first blush.

Employers always need to exercise caution when contacting employees who are on FMLA. An employer should never ask an employee to do any substantive work during that employee’s leave. Below are some general guidelines New Mexico employers can follow to avoid inadvertently incurring liability by violating an employee’s FMLA leave.

The over-eager employee on FMLA leave

Requiring an employee to perform work during an FMLA leave constitutes interference with that employee’s FMLA rights and can subject an employer to liability. But an employer may occasionally feel like the employee’s unilateral desire to remain involved while on leave unfairly subjects the employer to liability.

What should an employer do when the employee who is on leave keeps volunteering to complete work? Although the courts have provided very little guidance for employers in this type of situation, one court in Ohio recently addressed this issue. The court held that the plaintiff who, while on leave, unilaterally chose to call into work three or four times daily to ask about his team’s performance or to ask about sales figures, failed to establish that his employer unlawfully interfered with his leave.

Any employer facing this type of situation should take care to document the unsolicited and unilateral nature of the communications. It may also serve the employer’s interests to have documented communications to the employee explaining that the employer is not requiring or expecting him to check in on work or perform any work duties during his FMLA leave.

Where is that file? Professional courtesies while on FMLA

Courts have held that fielding occasional calls about one’s job while on leave is a professional courtesy. [1] Such occasional inquiries do not abrogate or interfere with the exercise of an employee’s FMLA rights.[2]

What type of communications constitute professional courtesies? Courts have found no interference where a temporary replacement called a plaintiff, who was out on FMLA leave, once or twice regarding where to find items on the employee’s computer.[3] Emails from an employee’s supervisor during the employee’s FMLA leave asking where certain items were located in the office similarly does not amount to interference, especially where the employer expressly stated that the employee should do no work other than answer his question.[4] In general, “[w]hen limited to the scope of passing on institutional knowledge to new staff, or providing closure on completed assignments, employers do not violate the FMLA by making such calls.”[5]

Use good judgment

Even given the courts’ acceptance of the concept of professional courtesy, employers always should to exercise good judgement when contacting employees on FMLA. A proactive employer will always be clear in verbal and written communications that the employee is not to perform any work. If the employee persists in staying involved, the employer should strongly encourage the employee to take their full leave. If an employer finds it necessary to call an employee on FMLA with a question, the employer should be clear that the employee is not being asked to do research or to otherwise work to find out the answer to the question.

An employer can derive some measure of protection by only contacting an employee on leave in writing. Email communication in this circumstance provides two benefits. First, the employee can respond at a time that is convenient for him or her, so as to reduce the likelihood of interference. Second, a written communication serves the purpose of generating a documented record of the request and will help an employer establish that no impermissible interference occurred.

Finally, purposefully educating an employee before FMLA leave begins can help the employee to understand that the employer does not expect the employee to work or perform the functions of the job during leave.


[1,2] See Reilly v. Revlon, Inc., 620 F. Supp. 2d 524, 537 (S.D.N.Y. 2009); Chauncey v. Life Cycle Eng’g, Inc., 2013 U.S. Dist. LEXIS 140579, 36-37 (D.S.C. Sept. 30, 2013).

[3] See Reilly, 620 F. Supp. 2d at 537.

[4] See Chauncey v. Life Cycle Eng’g, Inc., 2013 U.S. Dist. LEXIS 140479.

[5] Reilly, 620 F. Supp. 2d at 537.


This article was reprinted with permission from Albuquerque Business First.

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