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eTrends - Employers Should Be Cautious When Contacting Employees During FMLA Leave

03.25.2011

Employers should tread cautiously when contacting employees out on Family Medical Leave.

A recent federal district court case from Arkansas, Terwilliger v. Howard Mem. Hospital, highlights the potential for trouble created when an employer contacts an employee who is out of the office on Family Medical Leave Act ("FMLA") leave.

In the case, a hospital housekeeper, Regina Terwilliger, took FMLA leave upon undergoing back surgery. During the weeks she was at home, her supervisor contacted her via telephone weekly to ask when she would be returning to work. When Terwilliger asked whether her job was in jeopardy, the supervisor allegedly answered that she should return to work as soon as possible. Terwilliger returned to work a week earlier than originally planned.

Terwilliger was terminated roughly a month after her return to work after being caught on a video surveillance tape allegedly stealing something from another employee’s desk. Another employee was also caught on the surveillance tape and terminated at the same time as Terwilliger. Terwilliger sued after her termination and alleged, among other things, interference with her FMLA rights.

The federal court denied summary judgment to the employer on the FMLA interference claim on the grounds that Terwilliger had a right not to be discouraged from taking FMLA leave, and the weekly calls from her supervisor could have discouraged her from taking that leave. Importantly, Terwilliger was allowed to take FMLA leave, but the employer was still potentially liable for making her feel pressured to return to work before the expiration of the statutory leave period.

Federal regulations detail the timing and circumstances under which an employer may request recertification for leave. 29 C.F.R. 825.308. Employers should be careful to limit any other contact with employees out on FMLA leave to a minimum.

Please contact Susan Parrott with any questions.


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Smith Anderson publishes eTrends periodically as a service to clients and friends. The purpose of this eTrends is to provide general information about a significant legal development in the field of employment law. Readers should be aware that the facts may vary from one situation to another, so the conclusions stated herein may not be applicable to the reader’s particular circumstances.

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