Recently, an email I received from a HR-related organization caught my eye.
The email was fashioned as a Q&A. One of its members posed a question that I’ve paraphrased here:
Our practice is to reach out to employees on FMLA leave once a month to check in and see how they are doing. So long as we just check in and do not discuss return to work, are allowed to do this?
The organization called upon a legal expert to answer, and she stated the following (again I paraphrase):
Although the regulations do not speak to such conduct, these types of check-ins are discouraged as they could cause an employee to feel pressured to return prior to the scheduled end of an approved leave. Only check in when FMLA leave is about to expire.
I cringed. That’s not right.
When it comes to communications with employees during FMLA leave, I follow two general rules:
Checking in on an employee so they can perform work for you: BAD
Checking in on an employee to see how they’re doing, assess possible accommodations to help them return, and confirm whether their return to work is/is not on target: GOOD
Insights for Employers
There are several reasons why I think it’s critical to stay in contact with your employee while they are on FMLA leave. Let’s review:
- Staying in touch shows your employee that you care. Friends, this is plain ‘ol common sense. When you check in on an employee during a leave of absence, the gesture communicates to your employee that you care about them, that you consider them a part of the team, and that you want to keep them engaged even though they are not presently at work. Conversely, when you buy into legalese that you shouldn’t have any contact with your employee, you lose a golden opportunity to simply show you care. A gentle reminder from Maya Angelou is appropriate here: your employees will not remember you for what you said or did, but they will never forget how you made them feel.
- Staying in touch allows you an opportunity to engage in the interactive process. Court have increasingly reminded us that a request for FMLA leave also can be a request for a reasonable accommodation. If we stay in touch with the employee, we can then engage the employee in a more informed dialogue about temporary adjustments we might be able to make to help the employee return to work. If no adjustments can be made, no sweat. Leave simply continues.
- Staying in touch gives the employer more flexibility to take action once FMLA is exhausted. A number of years ago, former EEOC Commission Chai Feldblum and I presented at a DMEC conference on leave as a reasonable accommodation. During that session, we discussed how employers should communicate with their employees while on leave as part of a robust interactive process. We lamented that employers generally conduct the ADA’s undue hardship analysis way too late — only after the employee has exhausted FMLA leave. Notably, Commissioner Feldblum acknowledged that employers are well within their right as early as “day one” of an employee’s FMLA leave to assess whether the absence constitutes an undue hardship (once FMLA leave is exhausted). However, if you don’t stay in contact with your employee, this table is never set and becomes a missed opportunity.
- Staying in touch allows you keep tabs on your employee. You knew this reason was coming, but it’s still important, amirite? If you simply lose touch with your employee for three entire months (or more!) while they’re away, you are not being proactive in fighting potential or actual misuse of FMLA leave.
In offering these reasons for staying in touch with your employee, I want to be clear: these regular communications should not be used to require employees to perform work. I covered the pitfalls of doing this in a previous post. To the contrary, these regular calls — about once a month or so — will go a long way to keeping your employee engaged and invested in what you are about.
Jeff Nowak is a Partner at the law firm of Littler Mendelson and has been named as one of Illinois’ top “40 Attorneys Under 40” to watch in 2012. Jeff is widely recognized as one of the nation’s foremost FMLA and ADA experts, regularly counseling clients on compliance with FMLA and ADA regulations, conducting FMLA/ADA audits and training, and successfully litigating FMLA and ADA lawsuits. Jeff is the author of the highly regarded FMLA Insights blog, which has been selected for four consecutive years by the ABA Journal as one of the top 100 legal blogs (2011-2017) and was also voted the No. 2 Labor and Employment blog by LexisNexis.
The above article first appeared in FMLA Insights and is reprinted with Jeff’s permission.