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Employee Working While on FMLA Leave? Know How To Respond!

It is a fairly common situation, an employee says she is suffering from a serious health condition and requests leave under the Family Medical Leave Act or FMLA. After granting the leave you find out the employee is performing a similar job at another company.

Can you lawfully terminate this employee or does she retain the protections of the FMLA?

It seems obvious that an employee who claims she is unable to work due to a serious health condition should lose the protections of the Act if she works while on leave. However, this is not necessarily the case. Of course if the leave was fraudulently requested, that is sufficient grounds for termination. But the issue of whether working while on leave by itself causes the employee to lose the protections of the law hinges on whether your company has a policy prohibiting outside employment. According to FMLA regulations:

“If the employer has a uniformly-applied policy governing outside or supplemental employment, such a policy may continue to apply to an employee while on FMLA leave. An employer which does not have such a policy may not deny benefits to which an employee is entitled under FMLA on this basis unless the FMLA leave was fraudulently obtained.”

In other words if your company does not have a policy prohibiting outside employment, an employee’s leave is still protected even if they work somewhere else while on leave. This issue once again highlights the importance of having a well drafted employee handbook.  Additionally, companies should be aware of the FMLA procedures for timely distribution of proper forms.

For any assistance please call Portnoy, Messinger, Pearl & Associates, Inc. at (516) 921-3400.


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