May 24, 2019

To Call or Not to Call: Court Clarifies FMLA Rights

If an employer calls an employee at home while the employee is out on leave under the Family and Medical Leave Act (FMLA), does that constitute FMLA interference? You know the answer! “It depends.”  First: the power of Why – why do you want to contact the employee?  If it’s to obtain information to determine if the leave is FMLA-qualifying, that’s likely permissible and would not constitute FMLA interference.

In one case, a manager called an employee 14 times over seven days to try to get more information about the employee’s absence and expected return to work.   When the employee failed to respond, the court held the employee’s failure to respond, “dooms his FMLA claim. The FMLA does not authorize employees to ‘keep their employers in the dark about when they will return’ from leave.”

In another case, an employer fired an employee for not following the employer’s call-in procedure. The court found the employer did not interfere with the employee’s FMLA rights because, “there is no right in the FMLA to be ‘left alone.’ ” Callison v. City of Phila., 430 F.3d 117, 119 (3d Cir. 2005.  More recently, that same court found again in an employer’s favor. In this case, the employer notified an employee who was out on FMLA leave to provide information regarding a workplace investigation. When she failed to do so, they fired her. She sued for FMLA interference and the court referenced its prior case and noted that while an employee on FMLA leave does not have the right to be left alone, “employers cannot generally require their employees on FMLA leave to remain on-call or to continue working,”

That’s called a clue! If you’re contacting your employee who is out on FMLA leave to ask them to do some work or be available for work, that might be ripe for an FMLA interference claim.  But, doing so to obtain information about the leave itself would be less likely.  These situations can be tricky. Before you call the employee, you may want to call your company’s employment counsel.