Working for another company while on FMLA

joannie

OK, FMLA experts, I need help. My policy states "Employees may not engage in work for another employer during the employee's normal busines hours while on Family and Medical Leave." I don't think an employee on FMLA should be able to work for another employer at any time during the leave. Can I legally take out the phrase "during the employee's normal business hours"?

Open discussion please. This topic is much safer than politics.;;)

davids

Here's my take. I think your policy can be troublesome under certain conditions. Suppose the employee's job with you is extremely labor intensive and the FMLA condition prevents the employee from performing THOSE duties. However, the employee is able to perform sedentary work. I think the employee has an obligation (ethically, if not legally) to see if you can provide light duty. But, if your comapny cannot, why should the employee not be able to work elsewhere (especially, if the employee is on leave without pay)? I would agree with your policy if the employee was performing similar duties for the other employer or you were able to provide light duty work.

stilldazed

I think you're really referring to a moonlighting policy, which is separate from FMLA LOA & working elsewhere while on LOA from your company.

If your suggestion is to restrict your employees' off-work hours, you should research consider that to do so in many circumstances will require that a business reason (PR, proprietary access, national security, etc). Then, if you are considering restricting off-work activities in the form of other employment, the policy could be applicable when the off-work activities involve other personal activities. You can control employee off-work activities to a limit, but there is a limit. If you exceed that limit, you may find yourself restricting their activities so much that you've crossed into an "engaged to wait" issue.

Quite frankly, FMLA addresses employees with multiple jobs on FMLA with one of their employers, and it is permitted, and based on the individual's medically certifiable work restrictions.

So, if your question is off-work activities or referring to this employee who also happens to work elsewhere and is absent from your place of employment, is there similarity in the two jobs? Would the restrictions from your job restrict the employee from the other job as well? And do not change the policy in the middle of this FMLA situation. Research it carefully. Ensure that you address the correct issue. Make changes that will work for multiple situations. Imagine yourself as the one working two jobs, on LOA from one, and cleared to work the other one. Advertise your policy change to staff within a reasonable time before it commences.

best wishes

drehil

Our policy states-"Employee may not accept any employment elsewhere, including a part time or a temporary position during a LOA or FMLA, unless written approval is granted by management."

NaeNae55

Seems like I read of a case a few years ago where the employer fired an employee for working elsewhere while on fmla. The employee was on leave due to stress. The temporary job they took did not cause them stress. The employer fired, the employee sued, and the employer was left with an empty bank account and a sorry expression.

Perhaps this is one where you call your attorney.

Good luck!

Nae

joannie

This isn't a current problem, I'm just revising my FMLA policy. We have a moonlighting policy that prohibits employees from working for a competitor or while on any type of paid or unpaid leave, but you can bet my first call before I fired someone on FMLA for violating the moonlighting policy would be to my attorney. I don't like the idea of an employee on FMLA working for someone else instead of us. After all, we are paying their benefits while they are off and we do have and offer modified duty or offer to reschedule work hours. I think if we are willing to accomodate them and they refuse, they shouldn't be able to work elsewhere.