One of our employees is on family medical leave. The employee’s manager has a question he wants to ask the employee about a work-related matter. Is it permissible under the law for a manager to contact an employee on family medical leave to ask a work-related question?
The short answer is: it depends. Employers must be careful when contacting an employee on family medical leave because of the risk of interfering with an employee’s protected leave rights.
Unfortunately, there is no bright line test about contact between employers and employees during federal or state family medical leave.
Leave ‘Interference’
The federal Family Medical Leave Act (FMLA) and the California Family Rights Act (CFRA) provide eligible employees with 12 weeks of job-protected leave in a 12-month period for qualifying reasons. The FMLA covers employers with 50 or more employees and the CFRA covers employers with five or more employees.
Both the FMLA and the CFRA make it unlawful for an employer to “interfere with, restrain, or deny the exercise of or the attempt to exercise” an employee’s leave rights. (29 U.S.C. Section 2615(a)(1); Government Code Section 12945.2 (q)).
Contacting an employee on FMLA/CFRA leave with work-related questions potentially risks interfering with the employee’s protected leave rights. However, employees on leave are not completely off-limits to all employer contacts about work-related matters.
Court Cases
The courts generally have found that a few brief work-related communications, such as calling an employee on leave to locate a file, a password, client information or obtain a status update will not rise to the level of FMLA/CFRA interference.
In Reilly v. Revlon, Inc. (620 F. Supp. 2d 524 (S.D.N.Y. 2009)), the court found that “Fielding occasional calls about one’s job while on leave is a professional courtesy that does not abrogate or interfere with the exercise of the employee’s FMLA rights.”
But if an employer requires an employee to perform job duties or time-consuming tasks while on FMLA/CFRA leave, these actions will cross the line into interfering with an employee’s leave rights.
A U.S. appeals court highlighted “…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 tasks or produce work product.” (Massey-Diez v. Univ. of Iowa Cmty. Med. Servs., Inc. (826 F.3d 1149 (8th Cir. 2016)).
Be Cautious
Employers, like the one here, may have legitimate work-related questions that come up when an employee is out on leave.
Employers must be cautious that communications with the employee do not expose the employer to an interference claim. To reduce potential risk, an employer should not contact an employee on leave with work-related questions, unless necessary.
If a manager has a crucial question that cannot wait until an employee returns from leave, communication with the employee should be kept brief and to the point. A manager’s short call or email to ask an employee a general administrative question, or to wrap up a project will likely not interfere with an employee’s leave rights.
A good guideline for employers to keep in mind is that the more time it takes for an employee to respond to an employer’s work-related question, the more likely that such contact will amount to FMLA/CFRA interference.
Provide Proper Training
Proper training of managers and supervisors is key to ensuring compliance with the FMLA and the CFRA. Employers should make sure that managers and supervisors understand the strong employee leave protections provided by the family medical leave laws.
Managers and supervisors should receive training on what kinds of work-related communications are appropriate when an employee is on leave and what actions may constitute interference with an employee’s leave rights.
Column based on questions asked by callers on the Labor Law Helpline, a service to California Chamber of Commerce preferred members and above. For expert explanations of labor laws and Cal/OSHA regulations, not legal counsel for specific situations, call (800) 348-2262 or submit your question at www.hrcalifornia.com.
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Lisa Guzman
