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*editorial assistance provided by Pete Brunson
If you ask and an employee voluntarily agrees to do work from home while on FMLA leave, is it unlawful “interference” with the employee’s rights? One court (given very specific circumstances) said “No.”
Madonna Massey-Diez was employed by the University of Iowa Community Medical Services, Inc. (UICMS) as a physician’s assistant from 2009 until UICMS’s decision not to renew her contract in 2013. UICMS did so because Massey-Diez continuously failed to complete medical documentation on a timely basis. She was subjected to disciplinary measures on three separate occasions and then placed on a 90-day probationary period. Failure to comply with the terms of her probation could result in UICMS not renewing her contract.
Massey-Diez took Family and Medical Leave Act (FMLA) leave for a broken foot on day 88 of her probation; to that point, she was not in compliance with the terms of her probation. While she was on FMLA leave, UICMS contacted Massey-Diez on multiple occasions asking if she would be willing to respond to patient phone calls, attend to prescription refills, send messages and review lab tests. Massey-Diez never declined to perform the requested work. In fact, Massey-Diez proactively sought ways to prevent depletion of her paid time off, saying she was “open for suggestions” from clinic administrators. Despite this, her supervising physician repeatedly expressed his concern, both prior to and during her leave, about her failure to complete records and stated that he was losing confidence in her. UICMS made the decision not to renew her contract on July 2. Massey-Diez returned from her FMLA leave on July 8 and was informed that her contract would not be renewed.
Massey-Diez sued under the FMLA, claiming in part that UICMS’s requests that she perform work while on FMLA leave “interfered” with her rights. Because no evidence was presented showing Massey-Diez expressed any reservations to UICMS about performing work while on FMLA leave, the Eighth Circuit Court of Appeals upheld the dismissal of her claim. The court held that the act of contacting the employee and requesting that she do some work, without more “coercive” language, was not enough to survive a motion for summary judgment. All evidence indicated that Massey-Diez performed her work voluntarily.
Our take on this case — this employer got lucky. While the FMLA regulations state that an employer is entitled to contact an employee while on FMLA leave to inquire into the employee’s status and intent to return to work, asking an employee to do work while on any type of FMLA leave is risky. While short phone calls for the purposes of having the employee pass on “institutional knowledge” are probably okay, anything more could lead to an FMLA interference claim.