Balancing Employees’ Obligations to Report and Communicate but not “Work” While on FMLA Leave

by Lana L. Rupprecht, Esq. - AVP Product Compliance

& Marti Cardi, Esq. - Senior Compliance Consultant and Legal Counsel,

May 03, 2023


"Where did you save the latest customer list?" "How are you feeling?" "I know you're on leave but can you just finish that Jones project in the next few days?"

Understanding what employers can communicate to employees who are on Family and Medical Leave Act (FMLA) leave – and what they can expect in return – can be challenging. Most employers know they cannot make employees work while out on leave, but how is "work" defined? Are quick, work-related questions permissible? What about questions of a more personal nature? The following examples, based on case law, provide guidance.

Example 1: While out on FMLA leave, Rudy Corpus, a business development specialist, received two emails from his boss with questions about pending sales proposals and customer contacts, and the status of Corpus's health and ability to return to work.

True or false: The emails violate the FMLA to the extent they are asking work-related questions.

Answer: False. In Corpus v. Aim Leasing Co. (N.D. Ohio 2021), the court found such contacts as "de minimis" and insufficient to support an FMLA violation. "[R]easonable contact limited to inquiries about the location of files or passing along institutional or status knowledge will not interfere with an employee's FMLA rights; however, asking or requiring an employee to perform work while on leave can constitute interference."

True or false: The emails violate the privacy protections under the FMLA to the extent they inquire into the status of Corpus's health condition.

Answer: False. The FMLA does not provide "employees with a right to medical privacy" or give employees "the right to refuse to truthfully answer questions concerning FMLA absences." An employer may "require medical certification of an employee's health condition, which includes disclosing symptoms, diagnoses, doctor visits, and whether medication is prescribed, among other information. 29 C.F.R. § 825.306(a)(3)"

Of course, such inquiries should go through the appropriate channels such as a Human Resources (HR) representative, not through the employee's direct supervisor. Further, all medical records must be stored confidentially and separately from an employee's personnel record. Medical certifications should not be returned to an employee's direct supervisor.

Example 2: While Madonna Massey-Diez, a physician assistant, was on FMLA leave, her employer asked her to manage and make corrections in the organization's electronic medical records system, which she agreed to do. Massey-Diez sought ways to prevent depletion of her bank of paid time off (PTO) while on FMLA leave and stated she was "open for suggestions" about how she could work.

True or false: Massey-Diez's employer's actions clearly do not violate the FMLA.

Answer: False. Although the court in Massey-Diez v. University of Iowa Community Medical Services, Inc. (8th Cir. 2016) ultimately found for the employer in this case, it noted that the directives "approached the line of interference." Had Massey-Diez demonstrated that her compliance was involuntary and/or a condition of her employment, the court suggested the decision would have been different. Massey-Diez expressed a desire and had volunteered to work while on FMLA leave. The court recognized that FMLA regulations permit "voluntary and uncoerced acceptance of work by employees on medical leave, so long as acceptance is not a condition of employment."

But, note that any time Massey-Diez was working rather than taking time off should not be counted toward her FMLA usage.

Takeaways for Employers

  • Short phone calls with employees on FMLA leave to ask about file locations or request institutional knowledge are, in most cases, acceptable under the FMLA.
  • Asking an employee about health information in a medical certification is permitted, as is a general inquiry about how the employee is doing and when she expects to return to work. But, such inquiries should come from a human resources professional not a direct supervisor.
  • If an employee wants to work while out on FMLA leave, obtain their request and agreement in writing. That document should specify the employee's understanding that there is no requirement to work while out on FMLA leave to ensure all expectations are clear. In essence, such an arrangement turns what may have been approved as a continuous leave into an intermittent leave and the employee's FMLA usage should be accounted for accordingly.
  • When in doubt, consult with your employment law attorney. These examples show that even if an employer wins a case, it still loses when it winds up in costly and preventable litigation.

Matrix Can Help!

Reliance Matrix is a branding name. Reliance Standard Life Insurance Company (Home Office Schaumburg, IL) is licensed in all states (except New York), the District of Columbia, Puerto Rico, the U.S. Virgin Islands and Guam. First Reliance Standard Life Insurance Company (Home Office New York, NY) is licensed in New York and Delaware. Standard Security Life Insurance Company of New York (Home Office New York, NY) is licensed in all states. Absence services are provided by Matrix Absence Management, Inc. (Home Office Phoenix, AZ).

Through its insurance and administrative services entities, Reliance Matrix offers integrated leave management services involving the FMLA, state-mandated paid family and medical leave and accommodation solutions. Product features and availability may vary by state. For more information, please contact your Reliance Matrix account manager, or reach us at [email protected].