Nursing Home-again

tbehan

I have an employee who has been off work 2 days a week on intermittent FMLA leave to provide care and psychological support to his father in a nursing home. I have been advised by a DOL official that while out on FMLA time, there are no legal requirements that this employee must be at the nursing home during our regular hours of work. In fact, this official informed me that once out on this leave, the employee could even work elsewhere. Can anyone provide any expert guidance with this obvious fraudulent intermittent FMLA case?
Thanks.

LindaS

I think that unless you have documented proof that this employee is elsewhere during the ENTIRE time he would normally be working, you may have a tough time engaging in any sort of disciplinary action against him. For example, if you know that the employee is out of town camping while his father is in the nursing home, then you would be able to do something but if the employee maybe comes to the nursing home in the morning, leaves for a while, then comes back, I don't think there is much you can do.

As far as the idea of working somewhere else, there was just a case wherein an employee was granted time off after his wife had a child and the policy at the company he worked stated that he could not work anywhere else while he was off on leave. He decided he was going to work at the restaurant his wife recently purchased and he was terminated. The courts sided with the employer since there was an established policy on this.

Good luck - this type of thing is very difficult. It's kind of like approving someone off for the birth of a child only to find out they spent the day fishing!!

tbehan

Yes, the difficulty here is that this employee could be providing support in the form of managing affairs, etc. not necessarily at the nursing home. Seems like it would be very difficult to prove that he is not providing that support, don't you think?
As far as working anywhere else during the FMLA leave, it sounds like since the FMLA is silent on this issue, if your policy prohibits this, then you are on firm ground to discipline the employee if it is discovered that they are working during this leave from work.