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Contacting employees on FMLA leave: A primer for employers

According to federal law, employers cannot make their employees work during FMLA leave. Most HR departments are well aware of this. But there is one area that is not always so clear: When, if ever, is it acceptable for employers to contact their employees who are on FMLA leave?

Once in a while, it may be necessary to contact an employee who is out on FMLA leave. Some forms of contact may be considered FMLA interference or could leave employers open to wage-and-hour disputes. This is a primer for contacting employees who are out on FMLA leave.

Work-related issues

Workflow cannot simply stop because someone is out of the office on FMLA. It is acceptable to make brief phone calls or emails to pass on knowledge, request information or keep someone up-to-date on work-related matters. As long as this sort of contact does not require the employee to perform work, it is not in violation of FMLA.

Discussing employment

Is your employee on FMLA about to get a raise? Are you considering giving them a promotion? Need to discuss their imminent return to work? Contacting them to discuss various conditions of their employment is fine as long as you mind their reinstatement rights.

Asking an employee to the office

It would be unwise to ask workers who are out on FMLA to come into the office, even if they are not instructed to complete any work. A few emails or phone calls about work issues are unlikely to raise eyebrows, but asking someone to come to the office is a different beast. It is more open to being interpreted as asking an employee to work while on FMLA.

Investigations or other urgent matters

Perhaps an employee who is on FMLA leave is also being investigated for an urgent matter like sexual harassment. Or maybe there is another investigation or important situation underway at work in which the employee on leave should participate. On one hand, having an employee on FMLA come into work to participate in an investigation could risk an interference or retaliation lawsuit. On the other hand, courts have ruled that employers are sometimes allowed to make employees on FMLA participate in workplace investigations. In an unclear scenario like this, it is wise to contact an employment attorney who specializes in FMLA issues.

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