One of the most common questions we receive from HR professionals about the leave process is: How do I know when I should or shouldn’t communicate with an employee who is out on FMLA?
Questions can pop up at any time during the leave process, including when someone is already out on leave. But, the courts have shown that contacting these employees can expose employers to legal risk. The problem is, the FMLA regulations pertaining to communicating with employees who are already out on Family Medical Leave are fuzzy. So when is it okay to contact an employee out on leave?
In this article, we have broken down what forms of communication during FMLA are acceptable and which you are better off avoiding.
Transferring of Institutional Knowledge
A few concise phone calls, or emails that are intended to request institutional knowledge will likely not amount to FMLA interference. This is based on court rulings, like Massey-Diaz v. University of Iowa Community Medical Services (2016), which highlights that there’s a huge difference between asking employees to pass on institutional knowledge of property as a professional courtesy and requesting employees to complete work-related tasks or produce work product. But remember to keep these conversations short and to the point.
That being said, if your employee is off of work due to excessive stress, burnout or overwork, any conversation at all is likely to be seen as harmful. In cases like these, it’s best to use caution when reaching out.
Working While on Leave
As you may have guessed, you simply cannot ask an employee to work while on FMLA. In many cases, the decision to take FMLA leave is extremely difficult for the employee. Plus, you never know what they might be going through, they could have a new medical condition or be looking over a family member in need. Though it may not seem like a big deal to ask an employee to come in for a quick meeting or to write up a brief email – asking an employee to perform any work duties at all is strongly ill-advised. Remember to lead with empathy, and be sensitive during these times.
What About Return to Work?
So, what happens when it’s almost time for them to return to work? When the employee’s FMLA entitlement is up, employers are permitted to call or send a Return to Work letter, notifying the employee of their return-to-work date. Ensure that the proper work date is being communicated, and that you have allotted the eligible time permitted.
To make things easier, we can suggest letting the employee know of their expected Return to Work date prior to their leave as well. Leave management software like AbsenceSoft can help you determine how long an employee is eligible to be out for, allowing you to communicate their return-to-work date before they leave.
If you need to reach out to them near the end of their leave entitlement to discuss any potential accommodations that need to be made under the Americans with Disabilities Act (ADA), this is generally acceptable, and often encouraged. Just keep in mind that any discussions regarding an employee’s return should be information-seeking, and not at all aggressive, as this could easily be misconstrued by the employee as pressure to return.
One of the best rules of thumb we’ve gathered: the more time it takes for an employee to respond to an employer’s request, the more likely that such contact will rise to the level of FMLA interference. Keep conversations short and to the point, and let employees take the time they need.
Additionally, so long as this is recognized at the time of leave request, the law does give employers the right to receive regular reports from their employees regarding the progress of their recovery. This can aid in the assessment for an accommodation during the leave, as opposed to waiting until the end.
Keep in mind that all communications, forms, and reports should be tracked and kept accessible, in case any auditors come knocking. Leave management software such as AbsenceSoft allows your leave team to track and report all communications, while also enabling reminders, so that you never miss a step in the FMLA or ADA process. Being a proactive employer during the leave process is key to keeping employees happy while also avoiding legal trouble.
And last, but most certainly not least, remember the age-old lesson – the Golden Rule. Treat the employee on FMLA as you would want to be treated during a similar difficult situation: respect their privacy, health, and safety.
Want to learn more about FMLA?
We’ve got you covered! We’ve helped over 200 customers streamline and optimize their leave management processes. To share what we’ve learned over the years, we collected our best practices for managing FMLA into an informative free guide for HR professionals: Best Practices for Modern FMLA Management. From the initial request all the way to the employee’s return to work, we show you step-by-step how to save time, avoid pitfalls, and improve compliance.