FMLA, ADA or???

ljault

Our nursing employee (located in Washington State) was injured on her "moonlighting" job and has lost some time. So, now she's back with medical restrictions (lifting, etc. - typical back injury stuff). In what ways (if any) are we required to accommodate these "light duty" restrictions from her physician, since the injury occurred at a secondary employer's site, rather than at our workplace?

Crout

Would you make an accommodation for an EE who hurts his/her back at home and comes in with a doctor's note? If so, then you should for this person as well. This is not an FMLA issue UNLESS the EE starts to miss time and requests FMLA. Based on your post, this also does not seem to be an ADA issue....at this point in time. However, what you might want to consider is what would happen if you refuse to accommodate the EE and the injury gets worse because of an incident that occurs at your place of business. Then you have a Worker's Comp claim, which could entail FMLA as part of recovery, and then could also become an ADA issue if it's a major, permanent injury. Quite a can of worms, I must say. My advice is to go ahead and accomodate as best you can and not nitpick about WHERE the injury occured.

ljault

Thank you! I totally agree with your take on it, but my superiors are hung up on the fact that the person has a second job and the absences/ restrictions are the result of working the second job. Appreciate your input.

mwild31

Hopefully what's happening here is this injury that occured at the other work site is going to be attributed to the other employer & you won't get roped into the WC claim. I like the idea of accomodation as Crout suggested, but I have another question for you, before FMLA or ADA is discussed - do you have any policies that prohibit 'moonlighting' or outside employment?

My policy, and please keep in mind we only have 108 ee's and are non-union states:

Outside Employment

It is the employee's responsibility to inform management that they are working at another position or operating a business on the side. If it is determined that such work is in direct competition with the Company, or is affecting the performance of the employee during normal working hours, the employee will be requested to give up the activity or terminate their employment from the Company. The Company does not intend to discourage this type of work, however we do require knowledge of it.

Do you have a similar policy?

Crout

mwild has a good point because if you have such a policy in place you can have your cake and eat it too. You could discipline the EE for violating the policy AND accomodate the injury. Again, this has to be a policy that is actually enforced for everyone. That being the case, the bosses will be pleased and you will have protected the company from potential liability. But not accomodating the injury as a way to punish the EE is just plain foolish.

ljault

I couldn't agree more (that it would be foolish to punish the employee by not accommodating). My counsel had been consistent with that idea.

Appreciate the input!

ljault

Yes, our policy is nearly identical to yours.

mwild31

I'm all for accomodation as Crout suggests (and if the ee is eligible for FMLA you will have to cover her), but I can see the point of the others at your company that say, hey, it didn't happen here - it was the result of work at a different company - so why should we accomodate as it means loss of productivity for us. Your situation illustrates one of the main reasons for having the outside employment policy in the first place - so why have it, if you're not going to use it? At the very least, this person should be brought in (after recovery) & the policy discussed and then she should make a choice (as her 2nd job is now affecting her performance with you) if she wants to continue with your company or not.