Human Resource Blog

Exempt employee responding to e-mails while on FMLA

If one of our exempt employees is getting paid while on FMLA is it okay for her to respond to job related phone calls and e-mails?

No, absolutely not. An employee who is working is, by definition, not on FMLA. By allowing this employee to work and counting that time as FMLA, you are depriving her of her right to time off under the federal Family and Medical Leave Act. The FMLA regulations specify that an employee who is working is never on FMLA. If this employee is working even 5 minutes per day, you need to stop her, right now. Alternatively, you could track the time that she works and not count that time as FMLA.

The fact that the employee is being paid while on FMLA is irrelevant. Under the 2009 FMLA regulations, an employee can substitute paid sick leave or (in some cases) paid vacation for unpaid FMLA. However, to count the time as FMLA, the employee must be doing no work.

Employees are entitled to 12 weeks of unpaid, job-protected leave under FMLA. Suppose this employee works the equivalent of one week while on FMLA. Under the law, you have deprived her of her FMLA rights, because she has only taken 11 weeks off work. Whether she is being paid for the time or not is irrelevant.

When you allow this employee paid leave that is not FMLA, you must extend that benefit to other employees as well. You have set a precedent to provide a new benefit to employees — paid leave, or the ability to work from home.