One of the questions I hear a lot from employers is: Can we communicate with employees on Family and Medical Leave Act leave and, if so, how much?
Over the weekend, I read a recent opinion from the Third Circuit Court of Appeals, which is right in my back yard. The case involved an employee who was informed that her job was being eliminated. However, her employer offered her another position within the company. The only catch was that she sign a non-competition agreement. The employee was given specific deadline in which to accept and sign. The alternative was termination with a severance.
Before the deadline, the employee suffered panic attacks, and the employer afforded her FMLA leave. But, after the employee commenced leave, the employer contacted the employee to reiterate the deadline to accept and sign.
This deadline came and went without the employee signing the non-compete. So, she was fired.
And then she sued for FMLA interference.
And she lost because I basically took the lede right from the Third Circuit’s opinion:
“Passport (Health Communications Inc.) imposed the requirement that (Helene) O’Donnell sign the offer letter and the non-compete agreement before she took FMLA leave. … Thus, O’Donnell knew that she needed to sign the forms well before she invoked her FMLA rights. … As this Court has previously explained, ‘there is no right in the FMLA to be left alone,’ and be completely absolved of responding to the employer’s discrete inquiries. … There is no evidence showing that Passport in any way hampered or discouraged O’Donnell’s exercise of her right to medical leave, or attempted to persuade her to return from her leave early.
Generally, you should be communicating with employees on FMLA leave.
This is especially true where the employee is taking leave for his/her own serious health condition and that serious health condition could also be construed under the Americans with Disabilities Act as a disability.
Because once the ADA comes into the equation, an employer should have an interactive dialogue with the disabled employee. This open communication helps determine what reasonable accommodations(s) will allow the employee to perform the essential functions of his/her job. This could be additional leave after FMLA expires, or something else, such as light duty.
But, the only way you’ll ascertain that is by communicating with your employee.