Employers need to know what distinguishes a professional courtesy — let’s say having an occasional job-related phone discussion with an employee on leave — from crossing the line and interfering with an employee’s rights under the Family and Medical Leave Act.
In other words, you as employer need to inform your employees about the parameters surrounding the type and frequency of contact they can make with co-workers or supervisors who are at home on approved FMLA leave.
The U.S. District Court for the Northern District of Ohio recently found that there indeed is a limit to how much an employer should make work-related contacts with an employee on leave. The court did so as it permitted a former hospital director’s FMLA interference and retaliation claims to advance to jury trial. The case is Vess v. Select Medical Corp., No. 3:11 CV 2549 (N.D. Ohio, March 15, 2013).
Facts of the Case
Julie Vess was employed as the director of respiratory therapy at Regency Hospital of Toledo. Four years into her tenure at Regency, Vess injured her knee in the hospital parking lot and later underwent surgery.
Vess contends that during her recovery and approved FMLA leave, hospital staff continually contacted her about work-related matters. She cited the following evidence:
- phone calls from direct reports that concerned scheduling;
- phone calls from her supervisor and her replacement that concerned her list of duties and the responsibilities that needed to be covered during her absence;
- a request for Vess to complete educational competencies and respiratory therapy training before she returned to work from FMLA leave;
- a request to input blood gas proficiency testing numbers into a system database so the hospital could remain in compliance with American Proficiency Institute standards; and
- a request to submit performance evaluations of respiratory therapists she supervised.
A few days after Vess returned from FMLA leave, the hospital suspended her with pay for practicing “outside her scope” when she effectively cancelled a doctor’s written order for one patient while writing an unauthorized order for another patient. Two weeks later, following an internal investigation, Regency fired Vess for the incident.
Vess, in turn, filed a lawsuit claiming that Regency interfered with her rights under FMLA and terminated her in retaliation for taking FMLA leave and filing a workers’ compensation claim, and the U.S. District Court for the Northern District of Ohio has allowed the matter to proceed to a jury trial.
Employer Takeaway
There are reasonable and defensible amounts of contact for an employer to make with an employee on leave — but sometimes the contact can go too far.
The Vess court, in agreement with past court decisions, believes it is best for employers to limit contacts with employees on leave to:
- passing on institutional knowledge;
- providing passwords and seeking closure on completed assignments; and
- identifying other employees to fill the void and facilitate the transition.
Otherwise, you would be wise to limit your communications with employees on leave to: (1) reassuring them that they are still part of the company and there will be a place for them when they return; (2) encouraging them to return as soon as they are able to do so; and (3) asking them to let you know if they decide they will not be returning from FMLA leave. (See ¶350 Communication During Leave in the Handbook.)