Can My Employer Ask Me to Work While I’m on FMLA Leave?

Family, Medical, and Other Leave Discrimination
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FMLA leaveIf you are out on leave under the federal Family and Medical Leave Act (FMLA) because of your own or a family member’s health issues, you and your employer can have some contact. It’s generally acceptable if your employer reaches out to you to ask a question or clarify an issue while you’re away from work. But if you’re being pestered constantly or asked to work while out on leave, that may violate the law—as long as you don’t voluntarily comply with the demands.

Generally speaking, it’s illegal for an employer to interfere with, restrain, or deny the exercise or attempted exercise by an employee of his or her rights under the FMLA. These cases are decided on the specific facts of each situation, so it’s hard to provide broad guidance on what is and isn’t allowed.

An occasional phone call about files, a simple request for materials, or a question to help complete an assignment would probably not violate the law. In contrast, if an employer forces an employee to do a substantial task, threatening consequences if the work isn’t done, that would likely be seen as breaking the law.

An Example: Physician’s Assistant Works at Home While on Leave

Last year, the U.S. Court of Appeals for the Eighth Circuit affirmed the dismissal of Madonna Massey-Diez’s claims that her former employer violated the FMLA when she worked during her leave.

The plaintiff worked as a physician’s assistant for the University of Iowa Community Medical Services (UICMS). As part of her job, Massey-Diez had to electronically update her patients’ medical records. Failing to do so within certain time frames could result in disciplinary action. Massey-Diez was considered excellent in her work with patients, but she had a hard time completing medical charts on time. She was disciplined twice for the problem before she broke her foot and went out on FMLA leave. When she left, some of her patient records were incomplete and already beyond the time limit.

While on leave, Massey-Diez worked on an electronic record system for herself and another employee. She also responded to patient phone calls, sent messages, handled some prescription refills and triage, and reviewed related laboratory tests. She never declined to perform these tasks nor objected to the work. UICMS contacted Massey-Diez numerous times during her FMLA leave, informing her that she was behind in completing her medical records and telling her to catch up.

UICMS had problems with the accuracy and timeliness of Massey-Diez’s records both before and during her FMLA leave. When she returned from leave, Massey-Diez was told that her contract wouldn’t be renewed because of the ongoing problems with her records. She sued UICMS, claiming that it interfered with her FMLA rights by requiring her to work during her leave. She also claimed that her contract was not renewed at least in part as retaliation for her FMLA leave.

The appellate court explained that a plaintiff claiming interference with FMLA rights has the burden of proving that she was entitled to a FMLA benefit, that the employer effectively denied that benefit, and that the reason for the denial was connected to the employee’s FMLA leave. The plaintiff also must show that the interference prejudiced her, due to a real and remediable impairment of her rights under the FMLA. In this analysis, it does not matter whether the employer intended to violate the FMLA.

One way to interfere with an employee’s entitlement to FMLA leave is to discourage an employee from using her leave. However, the FMLA allows an employee to voluntarily accept light-duty assignments while recovering from a health condition. That acceptance must not be coerced, and the work must not be required as a condition of ongoing employment.

An employer can also require an employee out on FMLA leave to report periodically on his or her recovery status and intent to return to work.

Know When to Say “No” to Work

Massey-Diez argued that UICMS’s repeated contact with her, asking when she would return and insisting that she work at home, denied her FMLA entitlements. UICMS countered that Massey-Diez voluntarily accepted those duties while on leave and was not coerced into doing so. Both the trial court and the appellate court agreed with UICMS. They essentially stated that Massey-Diez was too helpful for her own good as far as her FMLA rights were concerned.

Generally, an employer has the right to contact an employee on FMLA leave for certain limited purposes, but asking or requiring an employee to perform work while on leave can be considered interference. “Nondisruptive communications” like short phone calls, where the employee can pass on institutional knowledge or explain procedures as a professional courtesy, would not violate the law. On the other hand, requiring the employee to complete work-related tasks or produce new work product during FMLA leave usually would violate the law.

The appellate court decided that Massey-Diez was directed to do work at home during her leave. So why was her case dismissed?

The appellate court agreed with the trial court that, in essence, Massey-Diez had only herself to blame. It said:

Massey-Diez never expressed reservations to UICMS about performing work…while on leave…. More than this, she was proactive in seeking ways in which to prevent depletion of her [paid time off]. She wrote [an assistant administrator] stating she was “open for suggestions” on ways in which she might be able to come into work. Additionally, she attempted to come into work one day to see patients.

The court pointed out that when Massey-Diez was asked to see patients while she was still on crutches, she said no and she was neither forced to do so nor asked again. The court found that Massey-Diez came back to work once during her leave, but that was her decision. In total, “Massey-Diez has not presented evidence that UICMS’s requests were a condition of her employment nor that her compliance with them was anything but voluntary.” The appellate court therefore upheld the dismissal of her case alleging interference with FMLA leave.

Summing It Up

If you’re out on FMLA leave, you may find yourself in a tough situation. If you’re asked to perform work while on leave:

  • You can agree—but it’s possible that more and more work may come your way. That could limit the time and energy you have to either recover from your own condition or help care for another. You may find yourself, like Massey-Diez, unable to claim that you didn’t want to do that work.
  • You can say no—but you risk retaliation by your employer. You may find that you are criticized or disciplined for not getting work done.

To protect your FMLA rights, you should:

  • Be cooperative with simple, easy requests for information.
  • Respond promptly to inquiries about your status and when you will be back at work.
  • If asked to perform work that will burden you and prevent you from doing what you need to do on your leave, say no or ask what the consequences will be if you refuse. Will you be disciplined or suffer retaliation? If the answer is yes, your rights under the FMLA are being violated. Even if you comply with the demand for work, you may still be able to file a legal claim under these circumstances.

Though you may risk consequences if you stand up for your FMLA rights, you may lose them if you don’t.

If you have any questions about the FMLA or believe that your rights have been violated or interfered with, contact our office. We can discuss your situation, explain how the law may apply to you, and help you decide what you can do to protect your rights and interests.