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When An Employee Is On FMLA Leave, How Much Contact Is Too Much?

Published by on October 7, 2013

The Family and Medical Leave Act prohibits employers from interfering with the exercise by employees of their FMLA rights. Such interference by an employer may give rise to its civil liability. Employers can be deemed to interfere with the FMLA rights when they require employees to be “on call” or to perform work-related tasks during […]

The Family and Medical Leave Act prohibits employers from interfering with the exercise by employees of their FMLA rights. Such interference by an employer may give rise to its civil liability. Employers can be deemed to interfere with the FMLA rights when they require employees to be “on call” or to perform work-related tasks during their FMLA leave. On the other hand, some courts have held that occasional calls about the employee’s job while on FMLA leave does not interfere with the exercise of an employee’s FMLA rights. So, how much contact with an employee on FMLA leave is too much?  More after the break.

A recent federal court decision in Ohio helps define the boundaries. In the case, Julie Vess, the former director of respiratory therapy for the defendant hospital, sued the hospital claiming it interfered with the exercise of her FMLA rights. Vess was on FMLA leave from a knee injury sustained in a fall at her workplace. Vess alleged that while on FMLA leave, hospital respiratory therapists, Vess’ supervisor, and the individual acting in her place while on leave, contacted Vess at home about various work-related matters. At issue in the case was whether those contacts interfered with Vess’ FMLA rights. More specifically, the contact Vess alleged was that:

  • Vess responded to telephone calls from respiratory therapists regarding scheduling;
  • Vess took phone calls from her supervisor regarding duties that needed to be covered during her absence;
  • Vess spent time completing training that, allegedly, the hospital required her to complete before returning to work;
  • Vess discussed proficiency testing results with her supervisor and input the results into a report; and
  • The hospital required Vess to complete evaluations of respiratory therapists over the phone.

In determining that a jury could find in favor of Vess on her interference claim, the court explained that contact that is “limited to the scope of passing on institutional knowledge to new staff, or providing closure on completed assignments” does not violate the FMLA. Consequently, communications regarding the duties that needed to be covered during Vess’ absence, standing alone, would not have constituted interference. Vess’ allegations in the aggregate, however, exceeded the permissible limited scope. In particular, the court pointed to the allegations that Vess complete training prior to her return from leave, complete evaluations of respiratory therapists, and enter proficiency testing results, as problematic.

Even though this case illustrates that some contact may be appropriate without interfering with an employee’s leave rights, the safest approach is to minimize or avoid contact altogether, if possible.

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