How many employers have had this situation arise? An employee requests and receives FMLA leave. While they are out, the employee’s supervisor needs to locate a document, find out the status of a project the employee was working on, or a crucial question comes up that only the employee on leave can answer.
According to the courts, a few de minimis, work-related communications with the employee to “pass on institutional knowledge or documents”, or as a “professional courtesy”, may be permissible. See Massey-Diaz v. University of Iowa Community Medical Services, Inc. (2016). Any more than that, and the employer may be facing an FMLA interference lawsuit.
Under the FMLA regulations, interfering with an employee’s FMLA leave includes not only refusing to authorize FMLA leave, but also discouraging an employee from using leave. As the Court stated in Smith-Schrenk v. Genon Energy Services, L.L.C. (2015), “there is no right in the FMLA to be ‘left alone’ or be completely relieved from responding to an employer’s discrete inquiries.” However, this statement has to be balanced against the court’s other statement: “On the other hand, asking or requiring an employee to work while on leave can cross the line into interference.”
Unfortunately, there is no bright-line test for what is permissible vs. impermissible contact, but court cases give a catalog of good examples of permissible contact: occasional phone calls inquiring about files; a modest “unburdensome” request for materials; or an inquiry to close out a completed assignment. In contrast, it may be impermissible to require an employee to substantially update files, or to complete tasks the employee should have completed prior to the leave.
Based on these cases and the FMLA regulations, it is best not to contact an employee on FMLA leave. However, if you have an urgent question that cannot wait until the employee returns and it must be answered by that employee, then contact the employee but keep the communication brief. It is also best not to allow the employee to work while on leave, even if the employee voluntarily wants to do so, because the employee may later claim it was involuntary.