Can my Boss Ask Me to Work on an FMLA Approved Leave?

Handling Work Requests While on an FMLA Leave

Family Medical Leave Act
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The Family Medical Leave Act (FMLA) allows eligible employees to take up to 12 weeks of job-protected leave within a 12 month period to care for a child, spouse or family member, or to recover from their own serious health problem. In some cases, this leave may be extended for qualifying employees, such as those who are caring for an injured member of the military. Lately, there have been several stories circulating about companies who have asked their employees to conduct work tasks while on an FMLA approved leave from their regular jobs.

Is this even legal?

FMLA in the Courts

In 2012, Joan Smith, an employee at Genon Energy, requested an FMLA leave for a personal health need and was approved to do so. However, during the two months that she was on leave, her supervisor required her to provide many of the services she had done so while working in the office, tasks such as: delivering files to the office, revising and reviewing projects, and updating casework. Over that time span, Joan claimed that she worked as much as 20 to 40 hours per week on company business, and when she officially returned to work full time, she experienced a “hostile work environment” due to conflicts with her supervisor.

Joan ended up suing Genon Energy for this claim as well as FMLA interference, and the court ruled in both hers and the company’s favor. The response was that employers do have the right to send regular communications to an employee on an FMLA leave and that it is the employee’s responsibility to maintain open communication during this time.

However, the court also ruled that employers do not have the right to expect employees to continue to do work related tasks and work during the time of their FMLA leave.

Handling Work Requests on an FMLA Leave

Based on the above case, and others like it, it’s completely reasonable to expect that an employer may continue to send emails or snail mail, make phone inquiries, and even require employees to attend brief virtual team meetings while on an FMLA leave.

During the leave, the employee may have information about clients, projects, and other business-related tasks that colleagues or a supervisor can ask for in order to maintain business continuity. An employer will generally need to stay abreast of any changes and updates on the employee’s status, and if they will be able to return to work any sooner than the approved 12 weeks of leave. But, this is where the employer’s rights end.

Companies cannot ask employees to come into the office during their FMLA leave period, so they can “check on them” or make them feel like they need to be onsite. They cannot require employees on leave to continue to keep up with their work tasks, projects, or take calls from clients. Employers cannot expect employees on leave to use their own resources to perform business-related tasks.

While employers can ask for information and updates from an employee on an FMLA leave, they may not continually badger the employee and ask when they will be returning to work. They can ask this during reasonable intervals if the employee indicates that he or she is recovering from an illness or surgery, or if the employee indicates the desire to return to work sooner than the 12 week approved leave.

The employer cannot pry into the medical records of the employee, unless the employee is covered under a workers’ compensation case and can obtain this information via a medical release that the employee must sign.

Job Protection under FMLA

At no point can an employer threaten to remove a position, disqualify the employee from a pre-approved promotion or raise, punish, humiliate, or terminate an employee as a direct result of an FMLA leave. Employees can be terminated if they fail to return to work as per their doctor’s orders and have met the requirements of FMLA. Employees who feel that their rights are being denied or abused may contact their attorney and file a complaint with the United States Department of Labor for their state and county.