Today’s SHRM Daily Newsletter contains an article entitled “Leave Employees Alone During FMLA Time Off”. In the article, the author admonishes employers to rarely “call an employee in” or to contact the employee for work-related purposes while the employee is on FMLA leave. I agree with the author. If you contact an employee regarding work while they are on FMLA leave, you are asking to be sued and, I would never actually ask them to come in to work for anything short of a dire emergency. One element that the author did not stress is that all such work must be 100% voluntary. If the employee feels threatened or coerced to perform the work while on leave, you have violated the Act, even if you allow them to continue their leave and reinstate them when they are released to return to work.
Having said that, if you find that you absolutely must contact an employee while they are on FMLA leave, don’t forget your obligation to compensate them for the time.
Non-Exempt: If the employee is non-exempt, you must pay them for the time that the employee is suffered or permitted to work. Curiously, the Act does not define “work.” If I contacted an employee to do some work while they were on FMLA leave, I would be most generous in my interpretation of “work” and how much time I owed them. The employee may already be aggravated that you are calling them while on leave; I would not compound their discontent by appearing to be cheap with the time I credited to them.
This is not the type of situation in which you should use the de minimis defense. Generally, insignificant periods of time of a few seconds or minutes that are infrequent and uncertain need not be counted as working time. However, several courts have challenged the applicability of the de minimis defense, holding that it is only available when there is a significant practical administrative difficulty in recording the time. If you contact an employee out on FMLA leave about work, don’t tell them that the time was so insignificant that you are not going to pay them for it. Employees know that you are supposed to leave them alone while on leave, and being called from work while out will probably not seem insignificant to them.
Exempt: Usually, an employer must pay an exempt employee their full salary if they work any part of a work week. There are the usual exceptions to this general rule: when an exempt employee is absent from work for one or more full days for personal reasons other than sickness or disability; for absences of one or more full days due to sickness or disability if the deduction is made in accordance with a bona fide plan, policy or practice of providing compensation for salary lost due to illness; to offset amounts employees receive as jury or witness fees, or for military pay; for penalties imposed in good faith for infractions of safety rules of major significance; for unpaid disciplinary suspensions of one or more full days imposed in good faith for workplace conduct rule infractions; or unpaid leave under the Family and Medical Leave Act.
Thus, if an exempt employee who is out on unpaid FMLA leave voluntarily performs a little work, you probably do not have to pay them for the entire day or week. Rather, you should be able to pay them just for the time spent doing the work without jeopardizing their exempt status.
Top Three Takeaways:
- Don’t ask an employee on FMLA leave to work;
- Don’t ask an employee on FMLA leave to work; and
- Don’t ask an employee on FMLA leave to work.
(Can you tell that I think that the risks of asking an employee to work while on FMLA leave totally outweigh the benefits?)
But, if you absolutely must ask them to work while on leave, PAY THEM for that time.