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The Practical Employer

No, You Can’t Require Your Employee to Work During an FMLA Leave

Make sure your managers, supervisors, and the co-workers left behind know and understand that an employee out on FMLA is not to be working.

Let’s examine a question I receive all too often — can an employer require an employee to work during an FMLA leave?

So as not to bury the lede, the answer is pretty strong no.

To examine this issue, let’s take a look at Lay v. Louisville-Jefferson Cnty. Metro Gov’t (W.D. Ky. 5/29/18).

Justin Lay, a packer in the Solid Waste Management Division of the Louisville-Jefferson County Metro Government, applied for, and won, a promotion to an equipment operator. The new position required Lay to hold a commercial driver’s license, which the collective bargaining agreement provided three months to obtain.

During that three-months period, however, Lay suffered a broken leg in an off-duty accident. As a result, he took an FMLA leave. During that leave, however, the employer terminated his employment because he had failed to obtain his CDL as required by the position.

Lay sued, claiming that his termination — specifically, the expectation and requirement that he obtain his CDL while out on an FMLA leave — violated his rights under the FMLA.

The court agreed that “requiring an employee to work while on leave from work is the definition of interference with an employee’s FMLA rights,” and that requiring an employee to complete the requirements for a CDL and take the driver’s test while on FMLA leave constituted this mandatory work. It concluded that a jury should determine whether the employer violated Lay’s FMLA rights and set the case for trial.

What can employers learn from this case? If an employee is out on FMLA leave, leave the employee alone.

There is a distinction to be made between “fielding occasional calls about one’s job while on leave [as] a professional courtesy” (which a New York federal court, in Reilly v. Revlon, concluded was not an FMLA violation), and requiring one “to continue to perform work-related tasks while ostensibly on medical leave” (such as providing updates on accounts and pending sales, which the 6th Circuit, in Arban v. West Publishing, concluded was an FMLA violation).

Generally, speaking, however, anything more than routine questions that can be fielded in a quick phone call or email will likely constitute a violation of your employee’s FMLA rights.

Make sure your managers, supervisors, and the co-workers left behind know and understand that an employee out on FMLA is not to be working. Otherwise, you just might be buying yourself an FMLA lawsuit.

Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. Comment below or email editors@workforce.com. Follow Hyman’s blog at Workforce.com/PracticalEmployer.

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