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Employer May Not Require Employee To Work During FMLA Leave

After plaintiff gave notice that she would be taking FMLA leave for surgery, her supervisor became hostile toward her.  During plaintiff’s two-month FMLA leave of absence, the supervisor required plaintiff to perform much of her regular work.  Plaintiff claimed that her supervisor required her to perform 20 to 40 hours of work (about 3 to 5 hours each week of the leave) updating cases, revising a project, and dropping off files at the office.  Plaintiff returned from her FMLA leave, but resigned one month later because she felt that her supervisor had created a hostile work environment following her return to work.


Plaintiff sued, claiming that requiring her to work during her FMLA leave interfered with the leave. A federal trial judge agreed in Smith-Schrenk v. Genon Energy Services, L.L.C, 2015 U.S. Dist. LEXIS 3007 (S.D. Tex. 2015).  The court cited the general rule that “reasonable contact limited to inquiries about the location of files or passing along institutional or status knowledge will not interfere with an employee’s [FMLA] rights; however, asking or requiring an employee to perform work while on leave can constitute interference.” It concluded that the work plaintiff was required to perform while on leave was sufficient evidence of interference with the FMLA leave to submit the case to a jury.


The takeaway: It is best that employees on FMLA leave be relieved of their work and not asked to perform work while on leave.  If absolutely necessary, an employer can make sporadic calls to employees posing general questions or regarding projects the absent employees were working on.