California employers are generally allowed to check up on employees while they are on FMLA leave. This was according to a Texas court's ruling in response to a lawsuit from an employee who was terminated for attending a Beyonce concert. The woman claimed that her termination was a violation of her FMLA rights and that it constituted retaliation against her.
In this particular case, the woman was watching the concert in her employer's sky box two weeks after receiving a performance improvement plan. This was while she was on leave because of anxiety over the volume of work that she was given as well as the PIP she received. While at the concert, the woman and her boss exchanged voice and email messages. After failing to respond to an email, the woman was terminated.
Her boss cited poor work performance, going to the concert and failing to respond to management inquiries as reasons for the termination. As the Texas court ruling showed, employers can continue with internal investigations assuming that they would have done so even if there was no FMLA request involved. Furthermore, the ruling shows that a company can terminate an employee even while on leave if that person fails to respond to a reasonable inquiry.
Employees who take FMLA leave may have rights that employers must respect while they are away. However, as this case shows, they must not abuse them. While companies are required to abide by that federal law, they might find it advisable to set forth in a portion of the employee manual the rules that are applicable, and an attorney might provide some assistance in its preparation.