When employees are out on FMLA leave, they’re supposed to be freed of their regular work responsibilities. They are on leave, after all.
Some supervisors have taken this to mean that it’s unlawful to call an employee who is out on FMLA leave to discuss any work-related matters. That’s not entirely true.
While you shouldn’t give the employee specific work tasks or expect her to spend her time working at home, you can make simple inquiries, such as asking about the status of a project or where a file may be located.
Just keep the conversation brief and professional.
Recent case: Tammy took FMLA leave when her husband had an operation and needed care while recovering.
While out on leave, Tammy claimed her supervisor called her a few times, though she couldn’t recall the specifics of any particular call. She said the calls lasted from a few minutes to as much as 30 minutes.
Later, after she was terminated for reasons unrelated to her FMLA leave, she sued, alleging the calls during her time off had interfered with her right to take FMLA leave.
The court disagreed. The calls were brief and didn’t require Tammy to do any work while on leave—just to answer a few questions. (Bryant v. Texas Department of Aging, et al., No. 14-20278, 5th Cir., 2015)
Advice: Before making such phone calls, take the time to document why you need to talk to the employee. Write down when you called and how long the conversation took.
5 do's and don'ts for checking up on sick workers
Every organization has its share of workers who abuse sick-leave policies. However, going too far to ferret our shirkers could invite discrimination claims and damage morale. Here are five do’s and don’ts to keep in mind:
1. DO require sick employees to check in with a manager every day, but only during work hours. Or have supervisors call sick employees at home each day during work hours. Be consistent with all employees.
2. DO insist on speaking to employees. If someone else answers the phone and says the worker isn’t available to talk, request that the employee call in as soon as possible. Take the same approach if you receive calls from another person on behalf of the sick worker.
3. DO make a surprise visit to the employee’s home if a worker doesn’t call in or won’t return calls within a reasonable period. If the employee isn’t home, you can later ask where the person was when you arrived. If the worker claims to have visited the doctor or a drug store, ask for a note, prescription receipt or other proof.
4. DON’T require sick workers to call supervisors upon leaving home and returning. Court decisions have ruled in favor of such a requirement but only in narrowly defined cases involving the FMLA. Applying the practice to all suspected sick-day abusers could tempt legal retaliation from employees.
5. DO know which absences are protected. Don’t check up on supposedly sick employees who you believe leave home to participate in protected activities, such as voting or attending church.
