Can I call an employee to answer a work-related question while he is out on FMLA leave recovering from surgery? If he wants to join a conference call, can I let him, or am I exposing the company to a claim that we “interfered” with his FMLA leave? Employers must pause for a time out to analyze the potential consequences before rushing in on an employee while he or she is on FMLA leave.

Under the FMLA, it is “unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise,” an employee’s right to medical leave. 29 U.S.C. § 2615(a)(1). The extent to which an employer may infringe upon an employee while he or she is out on FMLA leave without inviting a claim for FMLA interference heavily depends on the factual circumstance. However, a few recent appellate court cases provide helpful guidance in refereeing scenarios that may invite an FMLA interference claim.

The take away from the current case law is that an employee should not be required to perform work while on FMLA leave as a condition of employment. However, many federal appellate courts have found that an employer’s de minimis contact with the employee for limited purposes, such as an occasional and brief call or email to ask the employee to pass along institutional knowledge to another employee, is not FMLA interference.

For example, an Alabama mental health center’s occasional and brief telephone calls made to employee at home while on FMLA leave following surgery, did not amount to interference in violation of FMLA where she was not required to perform actual work or remain on call, she received all the leave she was due under the Act, and she suffered no consequences for refusing to take or respond to occasional telephone calls while she was on leave. Simmons v. Indian Rivers Mental Health Ctr., (11th Cir. June 13, 2016). In another recent case, an appellate court held that the employer’s contact with employee on FMLA leave was de minimis and therefore not interference where the only work-related question the employer asked the employee was the location of his emergency pager, and the employer never asked the employee to perform any work. Tilley v. Kalamazoo Cnty. Rd. Comm’n (6th Cir. June 27, 2016).

In another case, an Iowa clinic operator was held not to have interfered with an employee’s FMLA, even though she attended to her own and another employee’s electronic inbox from home including responding to patient phone calls, attending to prescription refills, sending messages, performing triage, and reviewing laboratory tests. The court focused on her testimony that at no point while on leave did she decline to perform the work nor did she express any reservations about doing so. Further, no one at the company stated or implied that her failure to do so would result in an adverse employment action.  The court noted that FMLA regulations permit “voluntary and un-coerced acceptance of work by employees on medical leave, so long as acceptance is not a condition of employment.”  Massey-Diez v. Univ. of Iowa Cmty. Med. Servs., Inc., 826 F.3d 1149 (8th Cir. 2016). Contrast that with an older case out of Michigan where a company was preparing to terminate an employee just before he went on FMLA leave. His supervisor called him several times while he was on leave, asked him to gather customer lists and pending sales information to provide to another account representative in his absence, but the employee said he wasn’t supposed to be working and refused. When a supervisor asked to meet with him, he again refused. He was thereafter terminated, sued and won. The appellate court affirmed the denial of the employer’s request for a new trial and remanded to require the payment of liquidated damages. Arban v. West Publishing Company (6th Circuit 2003).

So what is absolutely out of bounds? Requiring an employee to perform work while on FMLA leave as a condition of employment. Can’t an employer just ask employees on FMLA leave to keep checking their emails so they are still in the loop when they get back from leave? Stop and think before making the call on this question.  Is the employer requiring the employees to check their emails while out on leave as a condition of employment?  If the answer is yes, then the requirement may lead to a claim of FMLA interference.

What about the employee who insists on performing work while on FMLA leave even when the employer tells the employee not to do so? If the employee’s performance of work while on FMLA leave is completely voluntary and without coercion by the employer, then the employer likely will have a defensible position if the employee raises an FMLA interference claim. To limit exposure, the employer should advise the employee in writing that the employee is not required to perform work while on FMLA leave as a condition of employment and is not permitted to perform work while on leave.

Refereeing potential FMLA interference is not easy. By stopping to evaluate the circumstances before contacting an employee on FMLA leave, employers will lessen the likelihood of a replay review of the decision by a court.