Occasional Contacts Are Permitted During an Employee’s FMLA Leave

Although employees cannot be required to work while on Family and Medical Leave Act (FMLA) leave, occasional contact with those employees is not a violation of the law, as the U.S. Court of Appeals for the Sixth Circuit recently reiterated.

In Blank v. Nationwide Corp., while the employee was on FMLA leave, he was contacted by telephone to inform him that he was being demoted due to incidents that occurred approximately a week and a half earlier, which the Company had investigated. He then filed a complaint with the Company’s Office of Ethics that he believed the investigation was biased. A representative from the Office reached out to him to conduct an initial intake and discussion, and agreed not to contact him further until he returned from his FMLA leave. He subsequently sued his employer claiming, among other things, that contacting him while he was on FMLA leave interfered with his leave.

The Sixth Circuit however, rejected the employee’s claim, stating that “an employer can engage in de minimis contact with the employee on leave without violating their FMLA rights.” In this case, the call regarding his demotion had been set up prior to his FMLA leave, and the remaining contact was in response to the complaint that he had filed. The Sixth Circuit found these minimal contacts neither discouraged the employee from taking leave nor interfered with his ability to take leave under the FMLA.

While employees are on extended FMLA leaves, there may be occasions where the employer needs to contact them, such as for operations-critical information or to proceed with normal or significant disciplinary matters that should not wait until the conclusion of the leave. Employers can contact those employees without violating the FMLA – but should be careful to ensure that such contacts are kept to a minimum.