Today, my colleague Christopher Engler, takes a crack at explaining what happens with FMLA leave when an employee takes works at another job while on FMLA leave. As Chris explains, not everything about the statute is “common sense.”
In one scenario, a maintenance worker takes an FMLA leave for “mental distress” but continues to deliver oil through his family business.
In the second, an employee of a travel agency goes out on FMLA leave due to his “extreme fatigue” and is caught working at a local restaurant. Both men are fired.
Is there an FMLA violation?
The federal and Connecticut FMLA both limit employers’ ability to fire workers on FMLA. But if the employer has a policy forbidding outside employment, that may, in some instances, allow an employer to do so.
But employers need to be cautious: The policy must be uniformly applied and the ban must be express. Otherwise, the employer runs afoul of the FMLA if it fires an employee for simply working while on leave.
While the cases and regulations aren’t new, many employers take it for granted that employees can’t work another job while on leave. But the courts are reminding us of what happens when you assume.
In the above scenarios, taken from real cases, both of the employers won because they had clear policies.
Even so, there is a silver lining on this cloud.
If an employer has a policy, it only needs an honest and reasonable belief that a worker violated it to fire the worker. In other words, the courts tend to cut employers slack in investigating FMLA abuse. The Connecticut DOL agrees, “[e]ven if the [employer’s] investigation was poorly done.”
Of course, this doesn’t mean that employers can get complacent or sloppy with their investigations. The point is that courts and agencies prioritize the existence of the policy in these cases.
For that reason, your company should think about adding this type of policy to their handbooks and manuals. Your preferred legal counsel should be able to assist.
With the FMLA, employers shouldn’t take anything for granted — even on something as “common sense” as this approach.