If one of your employees works for a different company while on FMLA leave, that means he’s abusing his rights and you can stop offering leave, right? Wrong.

That’s what one employer assumed in this recent lawsuit:

An employee needed time off for a medical condition. She was initially approved for FMLA leave, but while she was gone, she worked in a similar job (but part-time) for a different employer. When the company found out, it told her to come back or be fired.

Wrong move, said the court. Catching an employee working somewhere else while on leave might be evidence that there’s abuse going on — but that’s not necessarily the case. In this instance, it looked like the employee was unable to work her normal full-time job, but that didn’t mean she couldn’t work part time.

In other cases, employees might be performing jobs somewhere else that are significantly different from their normal jobs (which they’re unable to do).

What to do?

So what can employers do in cases like this? If they suspect an employee is taking unnecessary leave, the best thing to do is to ask for a medical certification from a second (or third) doctor.

Also, courts have allowed companies to add “no moonlighting” provisions to their leave policies. As long as the policy exists and employees are aware of it, they can be disciplined for doing other work while they’re out on leave.

Cite: Lonicki v. Sutter Health Center

Tags: FMLA, moonlighting, part-time work, second job