FMLA Leave from One Job and Not Another?

Carolil

An employee has requested a 3-month unpaid leave of absence because she has exhausted herself by trying to rehab a bum knee and continuing to work. Her knee is getting better but she is spread pretty thin and needs time off.

Her manager supports the request and plans to hold the job open until she can return.

I wondered whether this might be FMLA-eligible, and was planning to explore with her and say that in order to request FMLA leave she would need to have her physician fill out the Medical Certification form. When we talked she mentioned that she has a part-time job that she was not planning to take a leave from, her interest was in reducing her total hours, not eliminating them completely.

I don't know what to do with that information. Do the FMLA guidelines offer any guidance? What would you do?

NaeNae55

Definitely FMLA related. As far as her 2nd job is concerned, you don't have to reduce her hours if she is doing the same kind of work. For instance, if you both require her to be on her feet. However, if her job with you requires her to be on her feet and the other one doesn't, she can still keep it while taking leave with you.

It can be a tricky situation, and you must remember you are setting a precedent. If it you are not crystal clear as to why she can, or cannot, take leave while working the other job then I strongly suggest you seek legal counsel.

Good luck!

Nae

davids

This is a very timely post. I am in the process of revising our FMLA policy to require that employees on FMLA, or our state version of it, have to have approval to work another job while on leave from us. This will require the employee to be open with us that s/he is working another job and provide us an opportunity to explore why the employee can work that job, but not ours. If there are differences in the types of work and it makes sense that the other work can be performed while ours cannot, we would approve their working elsewhere.

NaeNae55

You just have to be super careful. I remember reading a case where the employee went on fmla due to stress, but kept her second job. The employer fired her for working while on fmla claiming she was committing fmla fraud. She sued. She won. Her argument was that the second job did not cause her stress.

Julie Athey

[QUOTE=NaeNae55;719559]Definitely FMLA related. As far as her 2nd job is concerned, you don't have to reduce her hours if she is doing the same kind of work. For instance, if you both require her to be on her feet. However, if her job with you requires her to be on her feet and the other one doesn't, she can still keep it while taking leave with you.[/QUOTE]

I'm not sure I agree with this part of Nae's comment. Let's say the employee's two jobs are identical except that she works 35 hours a week at one and 20 hours a week at the other. Both jobs require her to be on her feet a substantial part of the time. I don't think that that fact necessarily precludes her from taking the full three months of FMLA leave from the job where she is eligible for it. How is it any different than if the employee worked 55 hours hours a week for a single employer and asked to take FMLA leave in the form of a reduced work schedule of 20 hours per week?

I'm not sure of the answer, just putting the question out there.

Julie Athey
Author - FMLA Compliance: Practical Solutions for HR
Editor - FMLA Compliance Bulletin

ACU Frank

I think I've proven that I'm NOT the expert on FMLA, but for what it's worth...

If I want to find a reason to deny FMLA, it's going to be due to a 'hard-coded' requirement - service time, hours worked, etc. Either they make the cut or they don't.

What I wouldn't do is exploit a gray area to create a reason for denial. Your action might be upheld, or it might not. And the next time you do the exact same thing, the outcome under litigation might be completely different.

IMO, there just isn't enough at stake to chance it. What's the downside to granting the leave? A problem employee goes away for 12 weeks and you don't pay them? I just don't think the reward merits the risk.

NaeNae55

Some very good points made here. It is definitely a case by case situation in which you want to always stay on the safe side.

Frank: What if you had an employee who was on their feet 6-8 hours at your place, and then 4-6 hours at a 2nd job. They suddenly have a knee or foot problem, and the doctor says to reduce their 'feet' time to 40 hours per week. Would it matter if the 2nd job was something they could do anywhere, anytime? A job you felt put your company in a poor light? Would it matter if the job they did for you was critical and a hard position to cover? What if your other employees start giving the fmla employee a hard time because they think the employee is slacking?

There are way too many variables for this kidn of situation, and one also has to consider precedence both in the work place and in the courts as well as the court system you are in.

If you can let them do the other job without too much hardship on your company, let them. If it looks like it will be a problem, call your lawyer for advice.