FMLA Leave – Must It Equal Radio Silence?

When an employee goes out on FMLA leave, an employer is forced to find a way to cover that employee’s responsibilities.  In some cases, tasks can be easily transferred to other employees on a temporary basis; however, there are some instances where continued communication with the employee on leave may be necessary to ensure the effective performance of various tasks.  Many employees who take FMLA leave do so out of necessity, but continue to have an interest and a desire to remain in communication with their workplace.  Other employees may be so overwhelmed by the events that led to their need for FMLA leave that they cannot maintain communication with their employer and they don’t want to be bothered with work issues while on leave.  When an employee does not want to have their FMLA leave interrupted by work and the employer maintains contact or continues to make demands of the employee while on leave, the employee may choose to file a claim against the employer for a violation of the FMLA.  A series of recent court cases have addressed the question of when continued communication during FMLA leave rises to the level of an FMLA violation. 

In Sutherland v. City of Pembroke Pines (S.D. Fla. Oct. 15, 2025), a teacher who was on bed rest due to a severe pregnancy-related condition took FMLA leave.  Rather than respecting the employee’s need for leave to receive treatment for this condition, the principal and curriculum specialist at her school continually pressured this teacher to provide lesson plans, respond to staff inquiries, and justify her medical absence throughout her FMLA leave.  Sutherland brought this FMLA claim on a pro se basis as part of a larger lawsuit that also included allegations of discrimination on the basis of her race.  The City of Pembroke Pines filed a motion to dismiss the complaint in its entirety, claiming that Sutherland’s complaint was deficient.  The court granted the motion to dismiss with respect to the discrimination claims contained in the complaint, but declined to dismiss the FMLA interference claims raised by the plaintiff, citing case law holdings that state an employer violates the FMLA when it requires an employee to perform any work during FMLA leave. 

Other courts have made similar findings regarding unlawful interference with an employee’s rights under the FMLA.  For example, in Alaska v. R1 RCM, Inc., (N.D. Ill. Mar. 11, 2026), the court found that an employer who increased an employee’s workload after he requested to use intermittent leave to care for his son and engaged in other negative conduct with respect to the employee, violated the FMLA.  In reaching this decision, the court rejected the employer’s argument that they could not have violated Alaska’s rights under the FMLA because it granted his request for leave under the law.  The court rejected this argument and found that the fact that the employer significantly altered the employee’s work activities in relation to his request for FMLA leave can constitute a tangible employment action that can be used to make a showing of interference. 

Another case, Rivera v. Pratt (Quality Carton), LLC (S.D.N.Y. Feb. 6, 2026), involved a situation where a plant manager who had been granted at least two FMLA leaves was terminated after his return from FMLA due to lateness and attendance issues.  In challenging his termination, Rivera claimed that the company interfered with his FMLA rights and submitted an affidavit in opposition to the defendant’s motion to dismiss claiming that he was contacted numerous times daily by employees while on leave.  The court granted the summary judgment motion, finding that the affidavit submitted by Rivera was a sham as it contained information and allegations that were not included in his complaint and were also not shared during his deposition.  The court acknowledged that there are situations that would support a finding of interference, mentioning two cases that involved the assignment of specific tasks during FMLA leave, but found that Rivera did not provide sufficient information to support his claims of interference.

Finally, in Shopek v. City of Minneapolis (D. Minn. Dec. 1, 2025), involves an IT employee with anxiety, depression, and ADHD disorder who sued his employer for failure to accommodate his disability and for allegedly interfering in his FMLA leave. Shopek based his claim for FMLA interference on the following communication from his supervisor: 

I understand that you have been taking intermittent FMLA days, which is your right and I fully support your need for medical leave. However, it is important to emphasize that these absences do not excuse you from your responsibilities as the supervisor of the team. As a leader, it is crucial that you demonstrate accountability and ensure that tasks are completed in a timely manner. I would like to discuss with you your plan for completing these overdue items and how we can prevent future delays.

The court rejected Shopek’s claim of interference, observing that the email in question specifically supported his use of FMLA leave and only reminded him that he needed to develop a plan to ensure that the work that he was responsible for was completed in a timely fashion.  The court noted that the supervisor also offered to meet with him to help develop that plan.  Finding that Shopek failed to state a valid claim for FMLA interference, the court referenced a case that found that “intermittent FMLA leave does not excuse an employee from the essential functions of the job. 

What do these cases mean for employers?  These cases are evidence that bad facts make bad law and employers who engage in negative behavior toward their employees are vulnerable to a wide variety of claims.  Three of the four cases involve plaintiffs who were bringing discrimination claims against their employer and were able to add an FMLA interference claim to their complaint.  These cases also illustrate the importance of taking a proactive approach to FMLA.  When an employee goes out on any type of leave, an employer is left with a gap in their staffing which makes it more difficult to get the work done.  The temptation is to rely on the employee who is going out on leave to find a way to ensure that their job responsibilities are covered. What these cases make clear is that the employer is responsible for that coverage and cannot expect or demand that employees fill the gaps that are created by their use of FMLA leave. 

Some steps that employers can take to avoid these types of claims:

1. Make sure that employees and supervisors alike know that leave means leave.  Treat FMLA leave like an unpaid break – employees must be relieved of all duties during their leave.  Do not allow supervisors to make changes to an employee’s responsibilities when they request FMLA leave – particularly if that leave is intermittent and those new responsibilities add complexity or increase the demands of the employee’s position. 

• Work with the employee prior to the leave to develop a plan to cover the employee’s responsibilities.  Since FMLA leave requires employees to provide notice of their need for foreseeable leave, use that notice period to work out how the employee’s responsibilities will be distributed while the employee is available to answer the questions of employees who may receive some of those duties.  If the leave is not foreseeable and there is no notice period, make sure that the supervisor takes responsibility for developing, implementing, and supporting the coverage plan. 

• Do not allow employees to maintain communication that is of a work-related nature while on FMLA leave.  If an employee requests the opportunity to be involved in work-related meetings or to review work-related documents, gently deny their request letting them know that they can get back up to speed when they return from leave. 

• Make sure that all communications related to FMLA leave are positive, supportive, and do not on their face appear to begrudge the employee’s use of FMLA leave or otherwise leave the impression that the employer, and the supervisor as the employer’s agent, resents the employee’s use of such leave or questions the need for the leave.  Make sure that Human Resources representatives, who should be trained in these matters, are responsible for all of the paperwork related to the FMLA leave. 

myHRcounsel can support you in ensuring that you are in full compliance with the FMLA and that you are not vulnerable to FMLA interference claims.