“While on FMLA leave, can I keep up with office emails?”

Question: I am on a Family Medical Leave Act (“FMLA”) leave of absence for the birth of my baby. I am a salaried manager. During my FMLA leave of absence, may I keep up with work emails?

Las Vegas, Nevada

Answer: Forgive me, but your question presents me with just a perfect opportunity to explain something about not only employment law and legal rights, but also employers and their lawyers. First, though, I’ll answer your question.

There is simply no rule, regulation or reason under FMLA that says you cannot keep up with work emails while you are out on leave. It is that simple. While FMLA permits you to devote all of your time and energy to your health or the health of a loved one, there is nothing in FMLA that says – or even suggests – you cannot keep up with work emails. That’s the simple answer. But, unfortunately life is not so simple.

The problem is this: most employers are afraid to do anything that might be interpreted or characterized as “interference with FMLA.” That is for two reasons: first, FMLA is a complicated statute, with complicated regulations, as it is intended to be adaptable to the many different “medical situations” in which employees (and their families) might find themselves. Second, FMLA has “real teeth”: employers who interfere with FMLA rights of employees may find themselves personally liable for fines and penalties.

As a result, many attorneys for employers tell employers, “Do not permit any employee to do any thing while on FMLA.” It is senseless, thoughtless, helpless and foolish – it helps no-one, but it is a way for employers’ lawyers to “cover their own butts,” and avoid all risks. This is one example of many situations where paranoid and defensive employers go way, way, way overboard in being inflexible, simply in order to avoid “all risk in all events.”

So, while nothing at all in FMLA prohibits or even discourages your keeping up with work emails while you are on FMLA leave, do not be surprised if your employer prohibits you from doing so.

If this does take place, you might offer your employer a letter in which you actually request the right to review emails, and also a written release of claims of any kind, to assure them that you are not about to turn around and sue them.

If you have any other questions about FMLA, feel free to view “FMLA – 50 Things You May Need to Know” in our Newsletter / Q&A Library. If you or any of our readers have any comments on FMLA, or on ” Employer Over-Lawyering,” please feel free to drop us a line, or add a Comment of your own.

Hope this helps. Enjoy your baby. I believe kids are the best part of life.

Al Sklover

© 2009 Alan L. Sklover, All Rights Reserved.

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