What’s the Frequency Kenneth: How Often May Employers Solicit Updates from Employees on FMLA Leave?

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May 20, 2014

Recently, while paging through a set of “boilerplate,” employer FMLA notification forms, I noticed a field/blank for employers to insert how frequently an employee seeking FMLA leave is to provide updates concerning return-to-work status. Believe it or not, my very next thought was about Dan Rathers’ 1986 mugging and the R.E.M. song Rathers’ mugging later inspired (strange, yes, but everyone needs a good muse). Anyway, after I regrouped (which happened to be approximately four minutes later), I remembered a case from about two years ago that addressed whether an employer’s weekly telephone calls to an employee on FMLA leave constitutes “interference” with an employee’s exercise of his/her rights under the FMLA.

In that case [for anyone who is interested, the case is called Terwilliger v. Howard Memorial Hospital, 770 F.Supp.2d 980 (W.D. Ark. 2011)] the court correctly noted that “interference” with an employee’s FMLA rights “includes discouraging an employee from using FMLA leave.” (see 29 C.F.R. 825.220(b)). Interestingly, the Court concluded that a supervisor’s weekly, status-report telephone calls to an employee on FMLA leave [including an alleged comment that the employee “should return to work as soon as she could”] supported a triable interference claim based on a chilling theory – the idea that the supervisor’s weekly telephone calls pressured the employee to use less than her full rights under the FMLA. This is an interesting case, no doubt, but it doesn’t tell the whole story, as explained below.

Although employers should always be cautious in terms of the frequency of contact with employees on FMLA leave, it is important to note that the federal regulations, specifically, 29 C.F.R. 825.311(a), instructs, “[a]n employer may require an employee on FMLA leave to report periodically on the employee’s status and intent to return to work.” This regulatory reality appears to have gone undetected in the Terwilliger case [or perhaps it wasn’t raised by the attorneys involved in the case]. However, an employer’s ability to solicit periodic status reports is an important point to remember – “according to the regulations, periodic reports are not the end of the world as we know it “even for purposes of the FMLA.

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