Labor & Employment Law Update

When a key employee takes FMLA leave under the federal Family and Medical Leave Act (FMLA), staying in touch may feel necessary to keep business operations running. But what many employers underestimate is that liability under the FMLA extends well beyond denying leave for an unlawful reason. It can arise from everyday decisions about communication, workload, and expectations during that leave.

Courts across the country continue to see a steady stream of litigation from employees who claim their employers crossed the line between permissible contact and unlawful interference during FMLA leave. Over the past few months, courts have weighed in on where that line can be drawn, and as this area of law continues to evolve, employers should become intimately familiar with this ever-changing legal landscape.

FMLA Liability: Three Common Ways Employers Violate the Law

The FMLA requires covered employers to provide eligible employees with up to 12 weeks of unpaid, job-protected leave per year for qualifying medical and family reasons. Beyond simply denying an employee leave for an unlawful reason, there are various types of conduct that can trigger liability.

Courts generally recognize three theories of liability under the FMLA.

1. Interference occurs when an employer restrains, denies, or discourages the exercise of FMLA rights, including burdening employees with work during an approved absence.
2. Retaliation arises when an employer takes an adverse employment action against an employee because they exercised FMLA rights, even where the leave itself was approved and taken in full.
3. Discrimination claims can attach where similarly situated employees who did not take FMLA leave are treated more favorably.

Importantly, these theories of liability can overlap and a single pattern of conduct can support all three simultaneously. Employers cannot solely focus on approving FMLA leave paperwork while ignoring what happens before, during, and after the leave period.

Contacting Employees on FMLA Leave: When Communication Creates Liability

A recent decision worth examining on this topic is Sutherland v. City of Pembroke Pines (S.D. Fla. Oct. 15, 2025). The plaintiff teacher took FMLA leave for a severe pregnancy-related condition that left her bedridden and requiring weekly medical appointments. Rather than allowing her time off to recover, the school principal and curriculum specialist allegedly pressured her to submit detailed lesson plans, respond to staff inquiries, and justify her medical absence throughout the leave period.

The school attempted to dismiss her FMLA interference claim, but the court found her allegations sufficient to survive dismissal, noting that while the FMLA does not create “an absolute right to be left alone,” repeated demands for work product during leave may constitute actionable interference. Although the case was otherwise dismissed without prejudice and with leave to amend on pleading deficiency grounds, the FMLA interference count was found legally viable, a significant warning for employers who might be excessively contacting employees out on FMLA leave.

The Broader Landscape: Additional Recent Cases

Sutherland is not an isolated development. As we noted in our prior article examining voluntary work during FMLA leave, courts continue to scrutinize employer conduct that burdens employees’ exercise of FMLA rights. When employers excessively contact employees during leave or materially increase their workloads in connection with FMLA leave—whether during the leave itself or upon return—litigation is likely to follow:

• Alaska v. R1 RCM Inc. (N.D. Ill. Mar. 11, 2026). Complaint survived a motion to dismiss where the plaintiff employee alleged that, after requesting intermittent FMLA leave, his employer significantly increased his workload with tasks outside the scope of his role.
• Rivera v. Pratt (Quality Carton), LLC (S.D.N.Y. Feb. 6, 2026). The plaintiff claimed his manager and colleagues contacted him “dozens of times each day” during FMLA leave, but the court found the evidence insufficient to establish actionable interference, particularly in light of the employer’s documented, non-FMLA-related reasons for its actions.
• Shopek v. City of Minneapolis (D. Minn. Dec. 1, 2025). The court dismissed FMLA claims where a supervisor’s limited communications with an employee on intermittent leave—including reminders about ongoing responsibilities and coordination of work coverage—did not plausibly rise to actionable interference.

Best Practices for Managing FMLA Leave Without Liability

Ultimately, employers may make reasonable, limited contact with employees on FMLA leave, but requiring work performance or imposing more than a de minimis burden can support a claim, depending on frequency, tone, and impact. To mitigate risk, employers should:

1. Train supervisors on a “leave means leave” standard. Assigning new tasks, increasing workloads, or making repeated work demands in connection with an FMLA leave can create liability even where the leave was approved and taken in full.
2. Develop a pre-leave coverage plan. Reaching out before FMLA leave begins to arrange coverage is defensible; requiring an employee to perform substantive work during leave is not. Proactively plan with the employee and obtain as much documented buy-in as possible.
3. Avoid workload changes near FMLA requests. Avoid increasing an employee’s responsibilities in connection with their use of block or intermittent FMLA leave absent a well-documented, legitimate business reason.
4. Audit your third-party administrator's communication protocols. On behalf of employers, third-party administrators (TPAs) often handle the bulk of communication with employees out on FMLA leave. Review and contractually restrict how your TPA contacts employees on leave to ensure those interactions are infrequent and limited to absolute necessity.