Leave Policy/Compliance

Ask the Expert: Job Interview for Employee on FMLA?

Question: Can an employer have an employee out on FMLA come in for an interview for an internal position that they applied for?

Answer from the experts at HR.BLR.com:

Thank you for your inquiry regarding an employer asking an employee who’s on FMLA leave to come in for an interview for an internal position.

The answer may depend on the type of Family and Medical Leave Act (FMLA) leave the employee is taking, and you likely should only request the employee come in for the interview, not require the employee to do so to avoid any inference of inappropriate interference with the employee’s FMLA leave.

If the employee is taking leave for his own serious health condition and cannot work as a result of the condition, it likely would be inappropriate to ask the employee to come in for an interview for an internal position.  If the employee cannot work because of his serious health condition, it stands to reason that he may not be physically able to come to the interview as a result of his condition.

And, practically speaking, you do not want to do anything that appears to interfere with the employee’s recuperation during an FMLA leave.  The FMLA specifically prohibits employers from interfering with, restraining, or denying the exercise of, or the attempt to exercise, any FMLA right.  See 29 C.F.R. sec. 825.220.

If the employee is taking FMLA leave to care for a seriously ill family member or leave to care for a newborn or newly placed child, and thus is not physically unable to come to work, you may be able to ask if the employee is available to come in for the interview.

However, you do not want to require the employee to come to the interview during the FMLA leave or you may appear to be interfering with, restraining, or denying the exercise of, or the attempt to exercise, any FMLA right by the employee.  If the employee does agree to come for an interview, you should not count that time against the employee’s FMLA leave entitlement.

Because of the potential violations of the FMLA, you should consult with an attorney on this matter.