Terminating FMLA Moonlighters

Don D

Don't know that this is a question, but, it might generate some dialog. Just read (Stekloff v. St. John's Mercy Health Systems, No. 99-3016, 8th Circuit) where ee walked off job claiming to be too upset to work and later in the day stuffed a note in her supervisor's mailbox from a Doctor stating she needed to be off for two weeks due to emotional distress. She then went to her second, part-time nursing job at a home health agency where she performed the same duties her Doctor said she could not perform at St. John's. St. John's terminated for job abandonment countering that the didn't qualify for FMLA because she didn't have a serious health condition, as proven by ability to work a second and identical job. 8th Circuit ruled she was Protected by FMLA even though doing essentially the same job for another employer. The "wise" robed ones said "She's not obligated to prove that she's unable to work in OTHER environments - only that she can't work in her current job."

Peyton Irby MS

it seems the 8th circuit may be confusing "can't work at this job" with the FMLA definition of a "serious medical condition". it certainly defies logic to say employees are entitled to FMLA when they can still perform the work.

Rockie

I've learned that the FMLA is like a lot of other employment laws. The basic premise of the law is good, but like everything else, unscrupulous people have found ways to take advantage of it and (some) attorney have been all too willing to jump on the bandwagon to make money off the "loopholes" they can find.

I'm not familiar with this particular case, but logically speaking, it doesn't make sense unless the court felt that the atmosphere of the primary job was the cause of the employee's distress and not the particular job duties.

Theresa Gegen TX

I saw a presentation on the FMLA given by a member of the DOL. The DOL took the position that a person on FMLA may be allowed to work an alternate job while on leave, if for example, the FMLA leave was to take care of a sick child and the alternate job had different hours (like nights), when the spouse could cover.

Before terminating an employee for moonlighting while on FMLA, the employer should be sure to discover all the facts. In the case you are talking about, the employer could have challanged the need for the FMLA through the procedures provided in the law. (additional medical provisions) That would probably be safer than terminating without a full investigation and a full defense worked out.

Good Luck!!

KP68

Seems to me that between this case and Ragsdale v. Wolverine, the FMLA is up for some revamping and clarification now that it's been in place long enough.

Hatchetman

I've heard of that decision.

Over the years, I've seen similar labor arbitration and state court decisions when issues of medical leave arise at one job while the employee works another. Nothing is really new in the federal decision except now it applies to FMLA, at least in the 8th Circuit.

Rockie

I think that's pitiful. Just another example of a law that was put into place to help people, but has created a nightmare for all of us employers!