Should Employees Work While Out on FMLA?

No.

If tribal employers follow the Family & Medical Leave Act (FMLA) or meet its minimum standards, does it violate the law if an employee is working while out on job protected leave?  The law does not explicitly prohibit employees working while out on job protected leave, but the employee could argue that the employer, overtly or not, expected the employee to continue to perform some work.  From there the employee will argue that he or she is denied a benefit to which the employee is entitled.  The employer could be liable for an interference claim.

It appears that courts take a common sense approach to interference claims.  On the one hand if an employer contacts an employee while out on job protected leave to answer a handful of questions about a project there is not a violation.  On the other hand, if the employer is aware that an employee is performing substantial work, there is a potential for the employee to claim interference.

To avoid going down this potentially risky path, the employer should adopt a policy which declares that an employee on job protected leave is fully relieved of their work obligation and shall not perform work.  This policy is important to mitigate the risk of an FMLA interference claim, and it is also important to avoid wage claims under the Fair Labor Standards Act.  If an employer adopts a policy prohibiting work while out on leave, include that language in the handbook as well as the cover letter transmitting the Designation Notice.

Recommendation: Limit risk by limiting work while employees are out on job protected leave.  That reduces the employer’s risk to an interference claim under the FMLA and a wage claim under the FLSA.