Practical Answers to Employment Law Issues
May 31, 2019 - Family Medical Leave Act (FMLA)

FMLA Leave in the Digital Age: When Contacting an Employee on FMLA Leave Constitutes Interference

FMLA Leave in the Digital Age: When Contacting an Employee on FMLA Leave Constitutes Interference

The American workplace has changed significantly since the passage of the Family and Medical Leave Act (“FMLA”) over 25 years ago.  The ubiquitous use of technology, such as email, instant messaging applications, laptops, and cellphones, have made working from home more commonplace and blurred the lines between home and work life.  In some industries or work cultures, managers expect employees to be accessible at most hours of the day, even when taking approved leaves of absence.  The need for employees to respond to employer inquiries while out of the office is even more likely when employees have valuable institutional knowledge about company business or clients that the employer needs.

While employee accessibility may just be part of the modern workplace, contacting an employee on FMLA protected leave may subject an employer to a claim of FMLA interference.  But employees on FMLA leave are not completely firewalled from all contact.  As one court found, “[f]ielding occasional calls about one’s job while on leave is a professional courtesy that does not abrogate or interfere with the exercise of an employee’s FMLA rights.”[1]  So, when does reaching out to an employee of FMLA leave rise to the level of interference?

Background on FMLA Interference Claims

The FMLA generally provides employees with up to 12 weeks of unpaid leave to, among other things, care for their own or a family member’s serious health condition and care for a newborn or adopted child within one year of birth or adoption placement.  It also provides up to 12 weeks of unpaid leave for employees to address any qualifying exigency arising out of military service and up to 26 weeks of unpaid leave to care for a covered service member with a serious injury or illness. 

To ensure employees can effectively exercise their rights under the FMLA, the FMLA makes it “unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise” an employee’s FMLA rights.[2]  To establish a claim for FMLA interference, an employee must show that (1) he or she is entitled to FMLA leave, (2) his or her employer interfered with that benefit, and (3) that interference caused harm.[3]  The FMLA does not define what types of actions constitute interference.  The sole example of interference in the regulations is “discouraging an employee from using such leave.”[4]  As one court put it, “[t]he line between contacts constituting interference and contacts that do not amount to interference, is indistinct.”[5] 

When Do Contacts Cross Into FMLA Interference

While it is clear that requiring an employee to perform work on FMLA leave interferes with the employee’s protected leave rights, it is not clear when less onerous requests, such as requests for information, are permissible.  Courts have generally found that “de minimis” work-related contacts, such as calling an employee on FMLA leave to request client contact information, update the employee about workplace news,[6] request keys and passwords to employer equipment and facilities,[7] or discuss administrative information,[8] do not constitute interference with FMLA leave.  If the purpose of these contacts is “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.”[9] 

Crossing the line from “de minimis” contacts to requiring an employee on FMLA leave to “work” is more often than not a matter of the amount of time it requires for the employee to respond to the employer’s request.[10]  As a general rule, the more time it takes for an employee to respond to an employer’s request, the more likely that such contact will rise to the level of FMLA interference.  Where an employer’s request merely requires an employee to access information that is readily accessible and such information is important to the employer’s operations, courts have generally found such contact to be de minimis.  For example, a court found that an employer did not interfere with an employee’s FMLA leave when she was briefly contacted by her temporary replacement and boss to obtain basic information relating to her duties, such as the location of certain documents.[11]  In another situation, an employee could not establish an FMLA interference claim related to contacts by her co-workers and supervisors during her leave where those contacts were to update her about a holiday party, ask her to provide client contact and account information, and request information about her medical status and the date she planned to return from leave.[12]  The court found these were de minimis contacts requesting “basic information about clients” or updating the employee about “occurrences at work.”[13]  That court found it significant that no one at the employer had told the employee that she was required to work while on FMLA leave or required her to respond to the emails or telephone calls she received.[14]

In contrast, contacts that relate to the employee’s regular job duties or that require a significant amount of time, such as requesting an employee to prepare a memorandum or organize events for a client, likely cross the line into impermissible interference with FMLA leave.[15]  For example, a federal district court found that an employer may have interfered with an employee’s FMLA leave by asking her “to perform 20-40 hours of work” and continuing “to call and email her requiring her to perform work assignments, including updating compliance cases, revising a safety review project, and dropping off files at the office.” [16]  

Even when an employee performs more than de minimis work on FMLA leave, it may not create an actionable interference claim if the employee volunteers to work.[17]  For example, the Eight Circuit Court of Appeals found that an employer did not interfere with a physician assistant’s FMLA leave by asking her to complete tasks from home, such as responding to emails and patient phone calls, attending to prescription refills, and reviewing laboratory tests.[18]  In reaching its conclusion, the court found that the employee never expressed reservations about performing work and was actually seeking ways not to deplete her paid time off.  While the court noted that her supervisors’ instructions to work from home during leave approached the line of interference, there was no actual interference because the employee could not show that the “requests were a condition of her employment nor that her compliance with them was anything but voluntary.”[19]

In some instances, an employer may need to contact or interview an employee on FMLA leave concerning a workplace investigation of the employee’s conduct or where the employee is needed to serve as a witness.  In such cases, courts have generally found that employers may contact employees for the limited purpose of fulfilling their investigatory obligations, but they cannot coerce or require employees to participate.  For example, the Fourth Circuit Court of Appeals found that an employer does not violate the FMLA by requiring an employee on FMLA leave to attend a meeting relating to an on-going investigation of that employee’s improper conduct.[20]  In that case, the employee, an assistant principal at a school, was diagnosed with post-traumatic stress disorder and went on FMLA leave after he had a physical altercation with a student.  During his leave, the Board asked him to attend a pre‑disciplinary conference related to the incident between the employee and the student.  The employee claimed that conference interfered with his leave by forcing him to work during his leave.[21]  The court disagreed, finding that “the one-time conference was a legitimate piece of an ongoing investigation[.]”[22]  Particularly illuminating for employers, the Fourth Circuit Court of Appeals stated:

It is surely true that the investigative processes of any institution are open to abuse, but the record here points to a standard procedure during which due process was accorded to Adams every step along the way.  Adams does not dispute that the Board was entitled to conduct its own investigation into the January 19 incident.  Indeed, school districts must often engage in investigations like this one or else face accusations and lawsuits for not looking promptly into allegations of improper teacher contact with students or violations of school district policies.  The pre-disciplinary conference was part of the investigatory and disciplinary process, which Adams has not adequately linked to his ample FMLA leaves, and seeking the participation of Adams and his attorney in that process did not constitute an impermissible interference with Adams’s FMLA leave.  And Adams never objected or sought a continuance he did not get.[23]

On the other hand, a California federal district court found that an employer’s demand for an employee to participate in a workplace investigation could constitute FMLA interference.[24]  In that case, the employee alleged that the employer waited almost a year after the employee first made the allegations to conduct an investigation, and the employer accused the employee of failing to cooperate when he refused to participate in the investigation due to his FMLA leave.[25]  The court concluded that these allegations could support a finding that the employer used the investigation to discourage the plaintiff from taking FMLA leave in violation of the statute.[26]

Practical Takeaways

The purpose of the FMLA is generally to allow employees to take leave from work to meet their family and medical needs without worrying that their job is in danger.  It places the onus on employers to ensure that employees can use the leave for such purposes.  While there may be a perfectly legitimate need to contact an employee on FMLA leave, employers must proceed cautiously to avoid interfering with the employee’s protected leave.  Without clear guidance for determining when such contact may rise to the level of FMLA interference, employers should consider the following general guidelines to mitigate potential risk:

  • Avoid contacting employees on FMLA leave unless necessary.  If it can wait until the employee returns, it is better not to contact the employee.
  • If contacting employees on FMLA leave, only ask them to provide basic information that does not require them to perform time consuming tasks or retrieve information that is not easily accessible.  Contacts should generally be for specific purposes and limited in nature.  
  • If the employee objects to being contacted, take the objections seriously.  Have in-house or outside counsel review whether further contact is advisable. 
  • Train human resource personnel and managers on what contacts are appropriate while an employee is on leave.

Document all interactions with employees on FMLA leave, including whether such contact was initiated by the employee or the employer and whether the employee voluntarily agreed to respond to the request.

*We gratefully acknowledge the assistance of Victoria Dalcourt Angle in the preparation of this article.

[1] Reilly v. Revlon, Inc., 620 F. Supp. 2d 524, 537 (S.D.N.Y. 2009).

[2] 29 U.S.C. § 2615(a)(1).

[3] See Antekeier v. Lab. Corp. of Am., 295 F. Supp. 3d 679, 684 (E.D. Va. 2018) (citing Adams v. Anne Arundel Cty. Pub. Sch., 789 F.3d 422, 427 (4th Cir. 2015)).

[4] 29 C.F.R. § 825.220(b)).

[5] Antekeier, 295 F. Supp. 3d at 684.

[6] Antekeier v. Lab. Corp. of Am., 295 F. Supp. 3d 679, 684 (E.D. Va. 2018); see also O’Donnell v. Passport Health Commc’ns, Inc., 561 F. App’x 212, 218 (3d Cir. 2014) (finding that emails sent to a plaintiff during FMLA leave requesting that she sign and return paperwork were “de minimis” and “did not materially interfere with her leave”).

[7] Daugherty v. Wabash Ctr., Inc., 577 F.3d 747, 751 (7th Cir. 2009) (stating that employer’s repeated requests for keys and passwords “are not more intrusive than the requirement to keep the employer informed about the status of medical leave or otherwise comply with customary employer rules regarding notice.”).

[8] Groening v. Glen Lake Cmty. Sch., 884 F.3d 626, 632 (6th Cir. 2018) (holding that contact initiated by School Board with superintendent requesting a breakdown of her time off did not rise to the level of actionable interference).

[9] Reilly v. Revlon, Inc., 620 F. Supp. 2d 524, 537 (S.D.N.Y. 2009); see also Massey-Diez v. Univ. of Iowa Cmty. Med. Servs., Inc., 826 F.3d 1149, 1158–59 (8th Cir. 2016) (“For purposes of summary judgment, courts have drawn the line along a distinction between, on the one hand, receiving nondisruptive communications such as short phone calls requesting the employee to pass on institutional knowledge or property as a professional courtesy, and, on the other, requiring the employee to complete work related to tasks or produce work product.”).

[10] See Massey-Diez v. Univ. of Iowa Cmty. Med. Servs., Inc., 826 F.3d 1149, 1158–59 (8th Cir. 2016) (collecting cases).  See Smith-Schrenk v. Genon Energy Servs., LLC, No. H-13-2902, 2015 WL 150727, at *10 (S.D. Tex. Jan. 12, 2015) (denying summary judgment where plaintiff alleged that the employer “continued assigning her work” during FMLA leave). 

[11] Reilly v. Revlon, Inc., 620 F. Supp. 2d at 537.

[12] Antekeier v. Lab. Corp. of Am., 295 F. Supp. 3d 679, 685 (E.D. Va. 2018). 

[13] Id.

[14] Id.

[15] Id. at 684 (E.D. Va. 2018); see also Hall v. Bd. of Educ. of City of Chi., No. 14-CV-3290, 2018 WL 587151, at *7 (N.D. Ill. Jan. 29, 2018) (denying motion for summary judgment for the employer where plaintiff, a teacher, provided an affidavit alleging that the principal contacted her during her FMLA leave and, among other things, wanted a prompt response to a question of how to access certain educational standards, requested emergency lesson plans for the entire leave period, and directed Plaintiff to post student grades earlier than required.); White v. Cardinal Health Inc., No. 1:05‑CV-0057-ODE-ECS, 2006 WL 8432042 (N.D. Ga. Feb. 28, 2006) (denying employer’s motion for summary judgment where manager called plaintiff repeatedly with work-related questions and demands in a manner that she found harassing, manager asked plaintiff’s family members to perform work-related tasks, plaintiff asked the human resources department and a supervisor to have the manager stop contacting her, and manager encouraged other colleagues to contact the plaintiff); McConnell v. Swifty Transp., Inc., No. 2:04-CV-0153, 2005 U.S. Dist. LEXIS 15565 (2005 WL 1865386), at *22-23 (S.D. Ohio July 29, 2005) (holding that plaintiff’s claim of FMLA interference was sufficient to survive summary judgment where plaintiff alleged that two co-workers called asking him to perform work-related tasks and that one co-worker visited him twice, contacts that the plaintiff characterized as harassing).

[16] Smith-Schrenk v. Genon Energy Servs., LLC, No. H-13-2902, 2015 WL 150727, at *3, *10 (S.D. Tex. Jan. 12, 2015) (denying summary judgment where plaintiff alleged that the employer “continued assigning her work” during FMLA leave).

[17] Massey-Diez v. Univ. of Iowa Cmty. Med.Servs., Inc., 826 F.3d 1149 (8th Cir. 2016) (where Eighth Circuit found that FMLA permits employees to voluntarily perform work while on leave).

[18] Id. at 1154.

[19] Id. at 1159-60.

[20] 789 F.3d 422 (4th Cir. 2015).

[21] Id. at 427.

[22] Id. at 427.

[23] Id. at 428.

[24] Michelucci v. Cty of Napa, No. 18-cv-05144-HSG, 2019 WL 1995332, at *6 (N.D. Cal. May 6, 2019).

[25] Id.

[26] Id.