The Family Medical Leave Act (FMLA) entitles eligible employees to twelve (12) weeks of unpaid, job-protected leave for certain personal and family medical reasons. The FMLA states that it is:
“Unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise any right.”
Employer Interference Under FMLA Includes:
- Discouraging an employee from using FMLA leave
- Discharging an employee for taking FMLA leave
- Requiring an employee to work during their leave of absence
REQUESTS TO WORK DURING LEAVE
Can an employer require you to answer emails, send documents, or complete job-related tasks while on FMLA leave?
Courts have generally held that limited contact—such as inquiries about an employee’s leave status, the location of documents, or requests to return paperwork or equipment—does not interfere with an employee’s FMLA rights. However, asking or requiring an employee to complete job duties or produce work-related output may constitute unlawful interference.
COMMUNICATIONS ABOUT LEAVE STATUS AND REQUESTS FOR DOCUMENTS OR THINGS
Courts have generally held that an employer may make “reasonable requests” of an employee on FMLA leave without interfering with their leave. For example, an employer may require an employee on FMLA leave to periodically report on their status and intent to return to work.
An employer may also request copies of documents necessary to perform an employee’s job during their leave of absence. For example, in Sabourin v. University of Utah, the employer contacted an employee repeatedly during his FMLA leave and requested that he return documents necessary for
the employer to respond to an auditor. The employee refused to return the documents stating he was not required to be working while on FMLA leave. In response, the employer terminated his employment, claiming, in part, that his refusal to return the documents amounted to insubordination. In reviewing the evidence, the Court of Appeal stated:
“[W]e see no improper imposition of work duties on him during his FMLA leave. The requests by [the employer] were for items necessary…to perform [the employee’s] work while he was absent. There will undoubtedly be occasions when an employee on FMLA leave cannot respond to any request by the employer, or the request may simply be unreasonably burdensome. But this was not such an occasion…the [employer’s] request for materials…was not an impermissible demand for work during FMLA leave. It was a request for a modest, unburdensome effort to enable [the employee’s] work to be performed while he was on leave.”
Other courts have similarly held that requests for keys and passwords do not constitute interference and that emails requesting paperwork are considered “de minimis” and do not materially interfere with an employee’s FMLA leave.
As one court explained:
“There is no right under the FMLA to be ‘left alone’ or to be completely relieved from responding to an employer’s discrete inquiries.”
REQUESTS THAT YOU PERFORM JOB-RELATED TASKS OR PRODUCE WORK PRODUCT
Asking or requiring an employee to perform job-related tasks or complete work while on FMLA leave can constitute unlawful interference. Courts have found the following actions sufficient to establish an interference claim:
- Requesting that an employee update case files or complete projects.
- Requiring an employee to personally deliver completed work to the office during their leave (Smith-Schrenk v. Genon Energy Servs., L.L.C.).
- Asking a sales representative on leave to provide customer lists, information on pending sales, and attend an in-person meeting (Arban v. W. Pub. Corp.).
- Making repeated phone calls to an employee on leave about work performance and tasks, including evaluations they were told needed to be completed immediately (Franks v. Indian Rivers Mental Health Ctr.).
As one court explained:
“The ability to take FMLA leave is not conditioned upon the willingness of the employee to remain on call to the employer” and “of the many prerequisites to FMLA leave, the convenience of the employer is not one.”
VOLUNTARY WORK IS PERMITTED
The FMLA regulations allow employees on medical leave to voluntarily accept work—the key being that the work must be performed voluntarily. In other words, acceptance must be uncoerced and not a condition of employment. If you are being asked to perform unwanted work during your FMLA leave, it is important to speak up. At least one court has held that an employee who never expressed reservations about working while on FMLA leave could not establish an interference claim.
If you are on FMLA leave, you should:
✔ Keep your employer informed of your leave status.
✔ Respond to reasonable requests regarding the location of documents or materials necessary for others to perform your job in your absence.
However, if your employer requests that you perform specific job duties—such as completing evaluations, reports, or updating files—you should inform them that you believe performing such work is improper during FMLA leave.
For assistance or more information regarding FMLA medical leave and interference, contact the employment attorneys at San Diego Biz Law, APC.
