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Workplace investigations and promotion discussions probably can wait
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Human resource professionals and managers should not call an employee into work for any reason during Family and Medical Leave Act (FMLA) time off, employment law attorneys say. Occasional phone calls may be OK, but workplace investigations and even promotion discussions should be postponed until the employee's return.
Asking an employee to report to work during FMLA leave could be viewed as unfair, said Joan Casciari, an attorney with Seyfarth Shaw in Chicago. Employees have alleged that such a request is a form of FMLA interference, she noted.
If someone is seriously ill, in rehabilitation or caring for a family member, it's likely the person simply cannot come to work or it would be an inconvenience, she noted.
"Several years ago, a client I worked with asked an employee on maternity/bonding leave to come to the office to speak about an accusation against the employee," Casciari recalled. "She agreed but later informed HR in her exit interview that she was very upset that her leave was disrupted."
[SHRM members-only toolkit: Coordinating Leaves of Absence]
The best practice for workplace investigations is to conduct any interviews when the employee returns to work, she said. If HR is going to question someone on the first day the person returns, it should send a letter to the employee while the person is on leave, letting him or her know to expect the interview on return so that the worker is not caught off guard, she said.
Frequently, employees who are in trouble at work go on leave to avoid being investigated, she noted. In that situation, she suggests that the company send a letter to the worker explaining that it will need to talk to the employee about the alleged conduct when the person returns to work.
FMLA interference claims can be harder for an employer to defend than retaliation claims under the law due to the differing legal proof requirements, said Marjory Robertson, assistant vice president and senior counsel for disability insurance company Sun Life Financial Services Co. in Wellesley Hills, Mass.
An employee does not have to prove "malicious intent" by the employer for an interference claim but must for a retaliation claim. In interference claims, the burden of proof is on the employer to demonstrate that it would have fired the employee despite the worker's FMLA leave.
An employer won't necessarily lose an interference claim if it requires the employee to come in during FMLA leave for a one-time conference as part of a workplace investigation of a particularly serious allegation, such as improper teacher contact with a student (see Adams v. Anne Arundel County Public Schools, 4th Cir., No. 14-1608 (June 15, 2015)). An employer also won an FMLA interference claim when it suspected an employee had abused FMLA leave by attending a Beyonce concert and she did not respond by phone to its question during the leave about her attending the event (Jackson v. BNSF Railway Co., N.D. Texas, 4:16-CV-695-A (Aug. 1, 2017)).
But by addressing any misconduct when the employee returns from leave, the employer avoids the possibility of an interference claim, with its tougher standard of proof for employers. Plus, if a company contacts an employee on leave to conduct an investigation, the employer runs the risk of appearing unsympathetic, she said.
No Mandatory Work
An employer cannot require employees on FMLA leave to work while on leave, noted Nonnie Shivers, an attorney with Ogletree Deakins in Phoenix.
This does not mean that employers are absolutely prohibited from contacting the employee about work-related matters—a few short phone calls to request updates likely do not amount to interference, she said. However, asking employees on FMLA leave to come into the office is more problematic because it is more burdensome and more likely to be interpreted as work, as compared to a short phone call.
If employees are voluntarily doing work during FMLA leave, courts are likelier to rule in employers' favor if the workers subsequently bring interference claims, Robertson said. Employers should document that any work beyond taking occasional phone calls to answer questions is being done voluntarily, she noted.
"While an employer may not force employees to work while on FMLA leave, there have been a number of cases where courts have granted summary judgment to the employer on the ground that the employee voluntarily agreed to complete work tasks and was not coerced into doing so," she observed.
Any work done during FMLA leave should be compensated to avoid wage and hour lawsuits.
Even if the employer wants to invite the employee in during FMLA leave to talk about a possible promotion and the discussion can't wait, Matthew Steinberg, an attorney with Akerman in New York City, said it's safer to interview the employee by using videoconferencing, Google Hangouts, Skype or FaceTime. "There are ways to get the same person-to-person contact without the person coming in," he noted.
Bobbi Kloss, director, Human Capital Management Services with Benefit Advisors Network in Solon, Ohio, said promotion discussions usually should be delayed until an employee returns from leave. "An employee may feel pressured to return to work prior to or against medical recommendations under the guise that they would lose the opportunity if they failed to respond while on FMLA leave, which could result in liability for the employer," she said.
If an employee on FMLA leave does participate in an investigation, it's best not to count that time against the worker's FMLA allotment and to compensate the employee fully for his or her time to avoid any wage-related issues, Shivers said. She noted, however, that in some instances the investigation may not be pressing or the employee may be due to return shortly.
"As a general rule, it is a best practice for employers to contact employees as little as possible while on FMLA leave," she said. But the employer may request updates about the employee's situation and confirm his or her return date, she noted.
"All too frequently, employees on leaves of absence already fear their positions may be in jeopardy, or they will lose a specific job benefit by being on leave," Kloss said. "To then be contacted while on leave for nonleave-related communication can be an added stressor."
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