Leave Me Alone: Can You Contact (or Fire) Employees on FMLA Leave?

An employee goes out on FMLA leave. While the employee is on leave, the employer contacts her. Six days before the anticipated end of that leave the employer fires the employee. The employee sues, alleging FMLA interference. Who wins? In this case, the employer did. Let’s delve into some of the details to learn why and what that could mean for the rest of you. Let’s first state some of the general rules with respect to FMLA. In order to make a claim for FMLA interference, an employee must show that: 1) S/he is an eligible employee under the FMLA (i.e. worked for the employer at least 12 months or 52 weeks and worked at least 1250 hours in the preceding 12 months); 2) the employer is subject to the FMLA’s requirements; 3) the employee is entitled to FMLA leave (s/he stated a qualifying reason under FMLA and is actually using the leave for that reason); 4) the employee gave notice as required by the FMLA and 5) the employee was denied benefits to which s/he was entitled under the FMLA. The last element was the one in dispute in this case. Next general rule: Employers cannot require employees to be on-call or continue working while on FMLA. So far, these rules seem to suggest that the employee in our case should win an interference claim–until we become aware of some additional facts. Here they are: The employer is a non-profit organization that offers emergency medical care, transport services and first aid training to its members. The employee worked as a trainer . In 2011, while employed for the company, this employee started a competing business. Six months later, her employer found out and required her to sign a non-compete agreement, which she did. She then promptly appropriated some of the company’s materials, including partially flood-damaged mannequins that she was instructed to destroy. While on a vacation, the employee sustained injuries and went out on an FMLA leave, scheduled to run from June 12 through July 29, 2013. The employer became aware of her intent to use the company’s mannequins in addition to other violations of the non-compete on July 3. On July 10, the company’s General Counsel sent a letter, requesting explanations for the apparent violations within 10 days. On July 21, one day after the expiration of the deadline, the employee replied, but answered no questions. She merely stated she was going to retain counsel. The General Counsel sent an email advising that her reply was late, insufficient and not responsive to the questions asked. The company then fired the employee, 6 days before her leave was set to expire. The Third Circuit Court of Appeals found that the employer did not commit leave interference. Specifically, the court found that under these facts the employer did not deny her benefits to which she was entitled under the FMLA. The court noted that the FMLA “does not provide employees with a right against termination for a reason other than interference with rights under the FMLA.” , and that a successful FMLA interference claim must show that the employer “illegitimately prevented him from obtaining those benefits.”) (emph. added). Therefore, a termination for reasons unrelated to the FMLA (which certainly happened here) defeats an FMLA interference claim. The court also cited prior rulings that “there is no right in the FMLA to be ‘left alone.’” Now, this case, by no means is a carte blanche for employers to go ahead and contact employees or fire them when they are on FMLA leave. So what does it do for employers then? It allows employers to conduct investigations of employees on leave–and require the employee’s cooperation–when there is an honest belief that the employee is engaging in misconduct or even abusing their leave. With that said, could the investigation have waited until after the employee returned to work? Would that have fended off the interference claim? Maybe, although the employee might then have alleged FMLA retaliation. I doubt that claim would have fared any better. What should you do if you have an employee on leave that you discover may be violating your policies? First and foremost: Do a prompt and thorough investigation. Before you contact the employee, make sure you have everything else in place, so you have all your evidence, and speak with counsel.  Then give the employee a chance to provide an explanation. That should probably be among the last steps, though. This employer got it right, because, from the looks of things, it did a thorough investigation and reached out to counsel. Note also that the employee did not even try to dispute the validity of the non-compete. This is also a case where the use of a non-compete was likely valid. This is the type of situation that a non-compete is supposed to address. While that issue was not before the court, it is worth noting. Well, that’s all I’ve got for now…

Contents of this post are for educational/informational purposes only, are not legal advice, and do not create an attorney-client relationship. Consult with competent employment counsel in the state(s) in which you employ people with your specific questions.

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