CAN YOU EXPECT ANY WORK FROM AN EMPLOYEE ON FMLA LEAVE?

An extremely interesting federal appeals court case addressed whether an employer can request work to be performed by an employee on FMLA leave.  Massey-Diez v. Univ. Of Iowa Community Medical Services, Inc., 26 WH Cases 2d 991 (C.A. 8, 2016).  The plaintiff claimed that she had been required to do various tasks while on FMLA leave, and she was ultimately terminated at least in part for failing to perform those tasks in a timely manner.  However, she also testified that at no point while on FMLA leave did she decline to perform the work requested of her nor did she express any reservations about doing so.  She testified:  "When they were asking me to do things from home, I basically did it because I felt like I had to;" and "It wasn’t a question of will you do this.  I was basically I need you to do this."  The theory of her case was that her employer’s directives to work, which she believed she had no choice but to comply with, interfered with her right under the FMLA to take leave.

Federal regulations provide that one way an employer interferes with an employee’s entitlement to FMLA leave is by "discouraging an employee from using such leave."  29 C.F.R. § 825.220(b).  But the FMLA does not prohibit "an employee’s voluntary and uncoerced acceptance (not as a condition of employment) of a light duty assignment while recovering from a serious health condition."  § 825.220(d). 

The appeals court determined the issue as whether her employer coerced her into performing work duties while on FMLA leave or whether she voluntarily agreed to do so.  Courts sometimes have drawn the line along a distinction between, on the one hand, receiving non-disruptive communications such as short phone calls requesting the employee to pass on information, and on the other, requiring the employee to complete work-related tasks or work product.  The court in the current case placed great significance on the fact that the plaintiff never expressed reservations to her employer about performing work while on leave.  And the fact that the employer allegedly "directed her" to attend to in-boxes and the like, had to be viewed in the context of her voluntary agreement to attend to certain duties.  From the facts, the court granted summary judgment to the employer, concluding that the plaintiff had not presented evidence that her employer’s requests were a condition of her employment, nor that her compliance with them was anything but voluntary.

The second but related issue pertained to her subsequent termination.  She argued that certain timeliness requirements were held against her related to her performance of certain duties while on FMLA leave.  The court reasoned that employees on FMLA leave are entitled to be free of work responsibilities, and that this included meeting certain timeliness requirements.  The court avoided this issue by concluding that the reasons for the termination related to a general problem with timeliness rather than timeliness specifically occurring while the plaintiff was on FMLA leave. 

Editor’s Note:  This case is extremely interesting in describing the extent to which an employer can "demand" certain job performance of an employee on FMLA leave.  Since this type fact pattern will often occur, it furnishes useful guidance for the avoidance of legal issues.