Yes, you may contact employees during FMLA leave

Jo Employee’s sudden, unexpected leave left the department in a bit of a quandary; she was involved in a number of important projects and was didn’t update company management on the status of the projects before her leave began. Marc, the HR manager, wondered if and when he could contact Jo to discuss the projects and how they could move forward, as it appeared Jo would be out for quite a while.

When an employee is on FMLA leave, particularly on a continuous basis (as opposed to intermittent or reduced schedule), many employers believe that the employee should be left alone; that no contact should be attempted with that employee. Such contact, however, may be made; sometimes, it’s even prudent.

The FMLA regulations support the need for effective communications between the employee and employer in planning for continuation of work in progress when the need to take FMLA leave becomes known. The preamble to the original regulations in 1993 indicates the following:

“Employers report that many employees fear that leaving their job for some period of time will affect their employer’s business, that their work will not get done or be done correctly, or that they will return to an accumulated backlog of work. Employers have found that it is extremely important to involve the employees in planning for how their work will get done during their absence. This effort helps relieve both the employer and the employee’s anxieties in this regard, and fosters cooperation among co-workers who may be called on to help cover the unit’s work during the absence.”

While the regulations do not specifically allow employers to contact employees during FMLA leave to ask about work-related matters, there also is no specific prohibition regarding such contact. The regulations were intended that, in those situations not specifically address, the employer and employee cooperatively resolve the issue to their mutual benefit.

In Marc’s situation, it would be entirely appropriate to grant the emergency leave and request that Jo contact her supervisor as soon as convenient to discuss the status or progress of her work.

Don’t ask employees to work

Such communications should not, however, go too far. Asking employees to otherwise perform work while on FMLA leave could be seen as interfering with their FMLA leave rights. So, while you may ask for status and progress, or even where to find certain information; asking an employee to continue to work on a project would step over a line.

Imagine, if you will, the following two conversations:

1. “Jo, could you please give us a status report on the X-project and perhaps lend some insight into how you foresee it progressing in your absence? Maybe identify someone who could step in to help during your absence?”
2. “Jo, could you please finish up the current step of the X-project while you’re out? That way we can start the next step fresh. Maybe you can also identify someone who could pick up at the next step.”

While the first one asks for basic status information, the second one asks that the employee continue working. When an employee is working — no matter where — the employee is not on FMLA leave. Employees have a right to take FMLA leave, unencumbered by work.

The bottom line is, you can ask certain things of an employee on FMLA leave, but don’t go too far.