During these unprecedented times, it is likely that employees may be utilizing various forms of protected leave under the Family Medical Leave Act (FMLA) and California Family Rights Act (CFRA). Some employees may be tempted to work remotely during their leave, perhaps to catch up, to stay ahead, or to offset the amount of time they are drawing down on their paid leave accruals or on an unpaid leave status. Supervisors may also feel inclined to communicate with employees on leave to keep them updated on work-related assignments, news, and events or to give them time-sensitive assignments. Here are some general rules and guidance for employers to be aware of regarding communications with employees on a protected leave.
General Rules Regarding Interference
Both the FMLA and CFRA prohibit an employer from interfering with, restraining, or denying an employee’s right to use leave under either statute. For example, if an employee is on FMLA or CFRA leave, the employer may not require the employee to answer e-mails or phone calls or attend meetings. However, depending on the reason for leave, an employee may still be able to perform some work for the employer. The employer should obtain the proper medical certification and document the arrangement and any parameters for working based on the employee’s medical note (which should only contain restrictions and/or potential accommodations that would allow the employee to perform the essential functions of his/her position). On the other hand, if the medical certification requires the employee to be completely off work, the employer should adhere to that requirement. In this situation, the employer should not allow, encourage, or permit the employee to engage in work and should limit communication to the employee, other than for purposes of administering the employee’s leave.
If an employee has remote access to his/her work e-mail account, an...
