Employees Should Not Be Working While on FMLA Leave

Q: Can I require an employee to do work while the employee is on FMLA leave?  What if the employee volunteers to work while on leave?

A: Under most circumstances, employees should not be required or permitted to perform work while on leave.  The Family and Medical Leave Act (FMLA) provides eligible employees a maximum of twelve weeks unpaid, job-protected leave for specified family and personal medical reasons in a twelve month period.  During that time, employers are prohibited from interfering with, restraining, or denying the exercise of or the attempt to exercise, any rights provided under the FMLA.

This does not mean that an employee must be left alone completely. While an employee is on leave, employers are permitted to inquire about the location of documents, the status of an assignment, and pass on institutional knowledge.  However, employers should keep communication with employees on leave to a minimum.  It is recommended that when communicating with an employee on leave, the employer should make it clear that it is not requiring or requesting the employee to work.

Some ways that employers may be found to have interfered with an employee’s leave include forcing an employee to complete an assignment, and denying or discouraging an employee from taking leave. Although interference is determined on a case-by-case basis, employers should be mindful that allowing an employee to work on leave may constitute impermissible interference.

Employers who pay for FMLA leave but allow or require employees to perform work while on paid leave also put themselves at risk of a claim for interference with leave. Although the employee is being paid, the basis for the leave is a medical necessity.  Thus, the employee would be entitled to the protections provided under the FMLA even though he or she is being paid.

As a general practice, employees on leave should not be asked or allowed to work on any assignments. If an employee does perform work while on FMLA leave, any hours spent completing assignments should not count towards the protected twelve week period.  To ensure compliance with the FMLA, employers should include a section in their personnel policies that discusses what conduct is appropriate while an employee is on leave.

– Renee C. Manson