Working at Home While on FMLA – Professional Courtesy or Interference?

Often times when an employee is at home while on an approved FMLA leave, work-related questions will arise that only the employee can answer. So, the manager or a co-worker will call the employee at home and get the answer. Usually that’s not a problem – but it could be depending on how often the calls happen. As a recent case held, a jury is going to decide just how often is too often so that it becomes interference with the employee’s rights under the FMLA.

Where Is the Line?

Determining when and how often calling an employee at home while on FMLA leave becomes interference will be tricky for an employer. The facts in this case show just how tricky that can be. The employee in this case was a working manager at an Ohio hospital as a respiratory therapist team leader. She spent time on the floor caring for patients in addition to her managerial responsibilities overseeing respiratory therapists. The employee injured her right knee when she fell in the parking lot at the hospital. Her injury required surgery. She sought and was granted FMLA leave. Another rehabilitation manager covered the employee’s management duties during her FMLA leave. The respiratory therapists who were normally supervised by the employee on FMLA leave were told to contact the replacement manager with questions while the employee was on leave. However, during her FMLA leave, respiratory therapists and the replacement manager contacted the employee at home about various work-related matters. These “work-related” contacts involved:

Responding to phone calls from respiratory therapists concerning scheduling;
Responding to phone calls from the replacement manager concerning responsibilities that needed to be covered during her absence;
Providing her computer password;
Identifying respiratory therapists to assume responsibilities for certain aspects of her department during her absence in a call that lasted about one hour;
Completing certain educational training and competencies that she was told needed to be done before her return;
Talking to the replacement manager for an hour about inputting Blood Gas Proficiency testing numbers;
Inputting the testing numbers into the computer herself so that the hospital could remain compliant with the American Proficiency Institution;
Preparing a list of her duties; and
Working with the replacement manager over the phone for about an hour to submit evaluations of respiratory therapists under her supervision.

The Jury Will Determine the Line

In denying the hospital’s motion for summary judgment, the court observed that fielding occasional calls about one’s job while on leave is a professional courtesy that does not abrogate or interfere with the exercise of an employee’s FMLA rights. When such contact is limited to the scope of passing on institutional knowledge to new staff or providing closure on completed assignments, employers do not violate the FMLA by making such calls. Accordingly, in this case the court believed that communications between the employee, her replacement and other employees for the purpose of facilitating the transition to employee’s responsibilities, such as providing a computer password and identifying employees to fill in for the employee, did not interfere with her FMLA leave as a matter of law – if that was as far as it went. However, the hospital’s requests to complete training prior to her return from leave, complete reviews of respiratory therapists and to enter blood gas data may have gone too far. When all of these contacts and requests are viewed together, they may be seen as exceeding the limited scope of passing along institutional knowledge and providing closure on completed assignments. These additional contacts and requirements presented disputed issues of material fact where a jury could find that the hospital interfered with the employee’s rights while on FMLA leave. Who can tell what a jury might decide?

Lessons for Employers

This case suggests that it is permissible for an employer to make limited work-related contacts with an employee who is at home while on FMLA leave. But obviously the fewer the contacts the better and the less likely the contacts will be seen as unlawful interference with FMLA rights. It’s best to limit the contacts to: