Dive Brief:

• A worker fired six days before her Family and Medical Leave Act (FMLA) leave was due to expire was unable to prove her claim of FMLA interference (Reagan v. Centre Lifelink Emergency Medical Services, Inc., No. 17-3056 (3rd Cir. May 2, 2019)).
• The worker launched a competing business, signed a noncompete agreement and began using her employer's CPR certification cards and training manikins for it. The employer became aware of some of the noncompete violations while the employee was on a medical FMLA leave and sent a letter requesting explanations within 10 days. The employee sent a late reply that did not address any of her employer's questions, and she was terminated a few days later.
• Employers cannot generally require employees on FMLA leave to remain on-call or continue working, but the statute does not provide any right to be "left alone," said the 3rd U.S. Circuit Court of Appeals. Because the worker was terminated for failing to timely and meaningfully respond to a one-time inquiry that was unrelated to the exercise of her FMLA rights, there was no FMLA interference and summary judgment in favor of the employer was upheld, the court held.

Dive Insight:

FMLA prohibits "interference" with the rights it guarantees, meaning employers can't discriminate or retaliate against employees who take (or attempt to take) FMLA leave. But, as this case indicates, the law does not provide workers with an absolute right to not be contacted while out on FMLA leave, particularly if the employer has a reasonable request for information unrelated to the worker's leave.

Close timing can support an inference of illegal FMLA interference or retaliation, as in the case of an employee who was furloughed two days after submitting a leave request. But going out on leave does not insulate workers from legitimate discipline, up to and including termination. The 10th Circuit, for example, recently upheld the dismissal of a salesman out on FMLA leave based on falsehoods and customer complaints discovered after he was out.

Employers must still be careful with workers who are out on leave, ensuring that discipline is largely unrelated to the leave. Moreover, unreasonably delaying an employee's return to work following FMLA leave has been ruled to constitute illegal interference. Also, as the court in Reagan mentioned, workers should not be put on call or expected to work during FMLA leave.