Your frequent contact with employees on FMLA may violate the law

“The Employer Handbook rules, dad!”

Last month, my wife gave birth to a beautiful little girl, Ivy Lynn Meyer. So it only seems fitting that a post should follow involving the Family and Medical Leave Act.

Imagine having an employee who needs time off for surgery. She completes the requisite paperwork and is approved for FMLA leave. During her FMLA leave, the employee’s supervisor contacts her weekly to inquire when she will be returning to work.

How many of you think this may be a problem if the supervisor making the call doesn’t know what she is doing? Me too. I’ll show you why after the jump.

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Give ’em some space, Ace.

Is an employer expressly forbidden from placing weekly calls to an employee out on FMLA to determine when/if the employee will return? No. However, if the employee feels pressured by the calls, as was the case in Terwilliger v. Howard Mem. Hosp., then the employee may have a claim for FMLA interference, according to an Arkansas federal court. That claim gets stronger if the employer suggests or implies that the employee may lose her job if she uses all of her FMLA leave.

Even if the employee returns to work after taking all leave to which she may be eligible, she may still have an FMLA interference claim. That is, an interference claim includes the “chill theory.” Interference occurs when an employer’s action deters an employee’s exercise of FMLA rights. This includes any action that chills an employee’s exercise of FMLA rights.

Know the basics:

The FMLA affords employers, even the most diligent, many opportunities to screw up. Whether it’s determining eligibility, designating leave, addressing intermittent leave, job restoration, or any other number of issues, employers need to stay on top of the latest developments affecting family and medical leave.

So make sure that your FMLA policy is updated. And even if you have a Human Resources Department, train your managers and supervisors to know how to address leave issues with employees, should the need arise. Because when a manager screws up, you screw up.