During these unprecedented times, it is likely that employees may be utilizing various forms of protected leave under the Family Medical Leave Act (FMLA) and California Family Rights Act (CFRA). Some employees may be tempted to work remotely during their leave, perhaps to catch up, to stay ahead, or to offset the amount of time they are drawing down on their paid leave accruals or on an unpaid leave status. Supervisors may also feel inclined to communicate with employees on leave to keep them updated on work-related assignments, news, and events or to give them time-sensitive assignments. Here are some general rules and guidance for employers to be aware of regarding communications with employees on a protected leave.
General Rules Regarding Interference
Both the FMLA and CFRA prohibit an employer from interfering with, restraining, or denying an employee’s right to use leave under either statute. For example, if an employee is on FMLA or CFRA leave, the employer may not require the employee to answer e-mails or phone calls or attend meetings. However, depending on the reason for leave, an employee may still be able to perform some work for the employer. The employer should obtain the proper medical certification and document the arrangement and any parameters for working based on the employee’s medical note (which should only contain restrictions and/or potential accommodations that would allow the employee to perform the essential functions of his/her position). On the other hand, if the medical certification requires the employee to be completely off work, the employer should adhere to that requirement. In this situation, the employer should not allow, encourage, or permit the employee to engage in work and should limit communication to the employee, other than for purposes of administering the employee’s leave.
If an employee has remote access to his/her work e-mail account, an employer can still send and copy e-mails to that employee, but the employer should not expect that the employee actually reads and keeps up with all the work-related correspondence while on leave. The employer should communicate to the employee that the employee is not expected to reply to any work-related e-mails while on leave. Otherwise, the employer potentially risks interfering with the employee’s protected leave rights. Of course, if an employee does not have access to his/her e-mail, the employer can send e-mails to him/her and simply expect a response upon the employee’s return. There are limited exceptions and circumstances where an employer may make brief, reasonable contact limited to administrative inquiries about information such as the location of documents, the name of a password, quick status updates of matters, and passing along of institutional knowledge to new staff without committing interference. (See, for example, Reilly v. Revlon, Inc. (S.D.N.Y. 2009) 620 F.Supp.2d 524, 537, holding that “[f]ielding occasional calls about one’s job while on leave is a professional courtesy that does not abrogate or interfere with the exercise of an employee’s FMLA rights.”) Keep in mind, these are general exceptions. Employers should only rely on them when necessary and with caution. The particular circumstances of each situation will dictate what is permissible and practical. Additionally, non-exempt employees on leave will need to be paid for all time spent conducting work on the employer’s behalf (even work they voluntarily perform). This is not an issue, however, while the employee is utilizing paid leave although employers may have to designate the leave as work time instead of deducting the time from the employee’s paid leave accruals.
Intermittent and Reduced Leave Options
Given the rise in remote work arrangements, and the ease in which employees can work remotely right now, there may be situations where an employee can perform limited levels of work, while remaining on FMLA/CFRA leave. Under both statutes, intermittent leave and reduced leave schedules could be viable options depending on the leave-qualifying reason(s). For example, the employee may need such leave to attend planned medical treatments, for doctor visits, for recovery time, or for other covered purposes needed for the employee’s serious health condition or that of a covered family member. To utilize intermittent and reduced leave schedules, there must be a documented medical need for leave, and the employer must be able to reasonably accommodate the intermittent leave or reduced leave schedule. Employees needing such leave must also make a reasonable effort to schedule their leave so as not to disrupt the employer’s operations. For example, an employee who is on an intermittent leave for scheduled medical treatments over a period of time should attempt to schedule their leave during a period when the employer can substitute other employees to fill the shift, or on days where designated meetings or events will not take place. Also, if an employee takes leave intermittently or on a reduced leave schedule, only the amount of leave actually taken may be counted towards the 12 weeks of leave (or 26 weeks of military caregiver leave) to which an employee is entitled.
Additionally, there are special considerations for pregnant employees and parents bonding with a newborn, foster-placed, or adopted child. Under the FMLA, for example, an employee may take leave to bond with the child within 12 months of the qualifying event, and such time must be a continuous block of leave, unless the employer agrees to allow intermittent leave. The employee is entitled to take intermittent leave in two-week increments. However, employers must grant a request for leave of less than two weeks’ duration on any two occasions and may grant requests for additional occasions of short-duration leave. (Cal. Code Regs., tit. 2, § 11090, subd. (d).) In addition, pregnant women are eligible for up to for four months of Pregnancy Disability Leave, which may be taken intermittently. (Cal. Code Regs., tit. 2, § 11035.)
If an employer does approve an intermittent leave or a reduced leave schedule request, it should take steps and precautions to ensure the employee follows appropriate protocols, including: confirming and tracking the number of hours and days the employee is scheduled to work (especially for non-exempt employees); setting the duration of the intermittent and reduced leave schedule (consistent with medical certification); assessing whether the employee’s duties are consistent with such medical certification; and an ongoing management of the employee’s leave to ensure the intermittent and reduced leave schedule does not inadvertently become a permanent accommodation under the ADA and/or FEHA once the eligible leave entitlement period ends.
In summary, an employer should not assign any work to employees on FMLA/CFRA leave in order to avoid interference claims. Necessary communications about work assignments should be brief, done sparingly, and not require the employee to travel to the workplace. The employer may also send e-mails to employees, but should not expect employees on leave with remote access to respond prior to returning. Intermittent or reduced leave schedules may be options for allowing the employee to continue to work and schedule their leave as reasonably as possible so as not to disrupt the employer’s operations. In these situations, the employer should document the parameters of such assignments and ensure the employee understands the restrictions. Non-exempt employees should also be paid for all work time to avoid wage and hour issues.