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Employment Law Blog
James Tarquin, P.A
As part of our commitment to assist and educate employees in fighting back against the abusive employment practices of employers, we offer a broad range of information about employment law issues in our employment blog.

Can Employers Require Workers On Leave Under The Family Medical Leave Act To Perform Work?

fmla, family medical leave act. Chalkboard on a wooden background

Having fought for the rights of employees for more than two decades, our Marion County, Florida employment lawyers know that employers often resent when employees exercise their rights under the Family Medical Leave Act (FMLA). In many cases, our Ocala, Florida employment attorneys have learned, employers will often require employees on FMLA leave to perform work while on FMLA leave. In this article, our Marion County, Florida employment lawyers explain how the decision in Smith v. School Board of Norfolk, Virginia, Case No. 21-cv-138 (E.D. Va. Nov. 5, 2021) illustrates that employers cannot require employees on FMLA leave to perform work.

Employee Rights Under FMLA

Under the FMLA, eligible employees are entitled up to twelve workweeks of unpaid leave a year when they are unable to work because of a serious health condition. The FMLA prohibits an employer from interfering with, restraining, or denying the exercise of or attempt to exercise any right provided by the FMLA. However, as observed by the court in Salem v. City of Port St. Lucie, Case No. 18-cv-14923 (S.D. Fla. Oct. 30, 2018), the “FMLA does not provide clear guidance as to how much of an interference with FMLA leave is actionable.” Moreover, as observed by the court in Vannoy v. Fed. Reserve Bank of Richmond, 827 F.3d 296 (4th Cir. 2016), “the FMLA provides no relief unless the employee has been prejudiced” by the interference with his or her FMLA rights.

When an employer “asks or directs an employee to do work while that employee is on FMLA leave,” as determined by the court in Antekeir v. Lab. Corp. of Am., 295 F.Supp.3d 679 (E.D. Va. 2018), the employer has interfered with the employee’s FMLA rights. However, the Antekeir court explained, an employer does not interfere with an employee’s FMLA rights by contacting an employee on FMLA leave “for some purpose other than to do work” or engaging in de minimis work-related contact, such as a telephone call to request client contact information or to call to update an employee about news in the workplace.”

Employee Claims Violation Of FMLA Rights

In Smith, a woman named Smith claimed that her former employer, the School Board for the City of Norfolk, Virginia (Norfolk School Board) violated the FMLA by forcing her to engage in work that was more than de minimus while she was on FMLA leave. Smith was employed by the Norfolk School Board as an office manager at an elementary school. The school principal, a woman named Belton, was Smith’s immediate supervisor. In December 2019, Smith informed Belton that she would take FMLA leave. That same month, Smith’s FMLA leave was certified for January 15, 2020 through March 9, 2020.

Smith alleges that while she was on FMLA leave, Belton and a Human Resources Department representative, a woman named Brown, called her repeatedly to assist with financial issues. On February 24, 2020, Belton and Brown, according to Smith, contacted her several times “over the course of the day through multiple telephone calls” and “inquired into the receipt book,” asking “where the receipt book was kept, what type of receipts were in the book, inquires about specific receipts, and other questions about receipts and records outside the standard receipt book.” Smith informed Brown that she would be better be able to answer the questions in person, but she could not come to the school while on FMLA leave. Brown allegedly called Smith “half a dozen times, both for her own help and on behalf of” of Belton. On March 4, 2020, while still on FMLA leave, Brown again contacted Smith “regarding additional receipt records that were not typically kept in the receipt book.”

Required To Do Work On FMLA Leave

Smith eventually learned that the receipt book inquiries were part of an audit and financial investigation into the financial records at the school. In addition to the aforementioned conversations over the course of her FMLA leave, Smith claims that she received numerous other calls and texts from Belton and Brown, not all of which she answered.

Smith returned to work on March 9, 2020, but Belton “confronted” Smith and instructed her to leave the premises. That same day, Smith was placed on administrative leave, pending the outcome of an internal investigation into the school’s finances. Smith claims that she was placed on administrative leave, in part, “because of the questioning she faced while on FMLA leave.” Smith further claims that she was never interviewed about the alleged financial issues under audit and investigation. Instead, she was “asked to supply information” to Belton and Brown “while on FMLA leave.” Smith maintains that Belton and Brown used her FMLA leave “as an opportunity to pin [her] as a scapegoat for alleged financial inconsistencies.” On September 16, 2020, Smith’s employment was terminated.

Evidence Of Violation Of FMLA Rights

The Norfolk School Board filed a motion with the trial court seeking dismissal of Smith’s FMLA interference claim. In doing so, the Norfolk School Board argued that the alleged contacts with Smith while she was on FMLA leave were de minimis and, therefore, did not constitute an interference with her FMLA rights in violation of the FMLA. The trial court rejected the Norfolk School Board’s argument and ruled that Smith had alleged sufficient facts to establish actionable interference with her FMLA rights.

In support of its conclusion, the trial court pointed out that Smith alleges that she was “forced to participate in the audit during her FMLA leave” and she was contacted “numerous times” by Belton and Brown while on FMLA leave. These alleged contacts with an employee on FMLA leave, the trial court reasoned, go far beyond the de minimus work-related contacts permitted the FMLA. The trial court also found that Smith’s allegations establish that she was prejudiced by the interference with her FMLA rights because she claims that her “forced” participation in the audit “ultimately resulted in the termination of her position.” These alleged harms, the trial court explained, “could have very well been the result of [Smith] having to participate in the audit while on FMLA leave.”

Employment Law Attorneys In Ocala, FL

Based in Ocala, Florida and workers employees throughout Central Florida, our employment law lawyers in Marion County, Florida have more than twenty years of experience representing employees. If your employee rights have been violated or you have questions about your rights as an employee under federal employment discrimination law, please contact our office for a free consultation with our employment law attorneys in Ocala, Florida. Our employee rights law firm takes employment law cases on a contingency fee basis. This means that there are no attorney’s fees incurred unless there is a recovery and our attorney’s fees come solely from the monetary award that you recover.

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