September 21, 2018
Authored by: Christy Phanthavong
When an employee goes out on continuous (not intermittent) leave under the Family and Medical Leave Act (or analogous state law), the employer must decide whether to turn off the employee’s email access during the leave. If the employer has a standard practice that applies to other comparable leaves of absence, then the employer should follow that practice for FMLA leave as well. But if the employer has no existing practice, what practice should it adopt?
On the one hand, employees should not be expected to work while they are on FMLA leave and, generally, should not work. Turning off the email access demonstrates the employer’s seriousness about compliance with this principle, precludes a one-off supervisor ignoring this principle and asking the employee to do something, and prevents the employee from ignoring this expectation and instead doing work (and making a claim later that he or she is entitled to pay and/or should not have had certain hours counted against the employee’s FMLA entitlement).
On the other hand, employers are permitted to communicate with employees while they are on leave, and may even ask employees on occasion to help briefly with something (like providing a summary of the status of a matter, or letting the employer know who the contact is for a project, or where to find a file) without violating the FMLA. This is typically viewed as something akin to a professional courtesy and will not support an interference claim, so long as it does not cross the