Q:  An employee who recently returned from FMLA leave claims that a portion of his leave of absence should not count against his FMLA entitlement because he responded to a number of work-related e-mails and telephone calls while he was out.  Can we still count this time as FMLA leave?

A:  I have fielded this question from several employers lately, so I figured I would tackle it head on.  In this situation, what an employer is worried about is FMLA "interference" -- the idea that the employer is denying the employee FMLA benefits to which he otherwise was entitled. 

In a nutshell, an employee is unlikely to establish an FMLA interference claim simply because he responds to some e-mail and a few phone calls during leave.

Generally, courts find that fielding occasional calls and e-mails that relate to your job while on leave is a "professional courtesy" that does not interfere with FMLA leave.  Therefore, a few  work-related communications likely will not constitute interference with an employee's FMLA rights.  As one federal court in New York put it, when an employee is passing on "institutional knowledge" or providing closure on open assignments, employers do not violate the FMLA. 

What about the employee who is answering e-mails and calls without the boss' knowledge?  Generally good news for employers here, too.  Several courts have refused to find FMLA interference where an employee performed work while on leave without first informing his supervisor that he did not want to work or was too fatigued to do so.  Soehner v. Time Warner Cable, Inc.

Insights for Employers

1.  There are no hard and fast rules about contact between employee and employer during FMLA leave.  As a general rule, an employee on leave should be fully relieved of their work and not asked to perform work while on leave.  That said, as evidenced by the cases highlighted above, it is unlikely to be an FMLA violation when an employer makes sporadic calls to an employee posing general questions (where they can find the company business plans, for example) or to wrap up a job the absent employee was working on.  Also, as evidenced in the Soehner case above, it is unlikely to be an FMLA violation where the employee is working behind the boss's back.

Tread carefully here, though.  If your employee is on FMLA leave and you learn that he or she is performing work (including regularly answering work-related e-mails and/or calls), the best course to reduce the risk of any FMLA (or FLSA) liability is to put an end to the work. 

2.  Watch out for possible FLSA issues where an employee performs work while on leave.  

This article can orginally found here

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BIOGRAPHY

Jeff S. Nowak serves as co-chair of Franczek Radelet  Labor and Employment Practice.  Jeff represents private and public sector management clients in all areas of labor and employment law.  He regularly counsels and litigates single- and multi-plaintiff matters relating to employment discrimination and traditional labor claims, and has extensive trial experience before labor arbitrators, judges and juries, in both federal and state courts and before administrative agencies. He has extensive experience dealing with the Family and Medical Leave Act (FMLA) and the Americans with Disabilities Act (ADA), including counseling clients on compliance with FMLA regulations, conducting FMLA audits and training, and successfully litigating FMLA and ADA lawsuits.

As a result of his FMLA focus, Jeff serves on the editorial board of the Family and Medical Leave Handbook, a comprehensive and well-respected publication which addresses the complex requirements of the FMLA, and is a chapter editor for the ABA/BNA FMLA treatise. Jeff is also the co-author of the firm’s FMLA Insights blog, and regularly speaks on employment-related topics.

In August 2009, the Daily Labor Report quoted Jeff extensively on President Obama’s expected labor and employment initiatives after the DLR covered Jeff’s presentation on the topic to the ABA. Jeff also was quoted in the July 2009 edition of the FMLA Handbook on how physicians are increasingly charging fees to complete FMLA medical certification forms.

Prior to joining the firm, Jeff practiced at McDermott Will & Emery LLP (1999–2003). In 1995, following his undergraduate study, Jeff was selected by then Illinois Governor Jim Edgar’s administration for the Dunn Fellowship Program, where he spent a full year working in the press office of Governor Jim Edgar. During his undergraduate study, he served as student body president.

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