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Workers can moonlight during FMLA leave

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in Discrimination and Harassment,FMLA Guidelines,Human Resources

Minutes after arguing with her supervisor, hospital psychiatric nurse Debbie Stekloff said she was too upset to work and walked off the job. Later that day, Stekloff's doctor wrote a note saying she shouldn't work for two weeks due to emotional distress. Stekloff dropped the note in her supervisor's mailbox and left.

The next day, she went to her second, part-time nursing job at a home health care agency, where she performed duties similar to those at the hospital.

A week later, the hospital fired Stekloff for "job abandonment." She charged the hospital with violating the Family and Medical Leave Act (FMLA). The hospital countered that Stekloff didn't qualify for FMLA because she didn't have a "serious health condition," as proven by her ability to work a second job.

The 8th Circuit ruled that Stekloff's leave was protected by the FMLA, even if she had been doing essentially the same job for another employer. The court said she's not obligated to prove that she's unable to work in other environments, only that she can't work in her current job. (Stekloff v. St. John's Mercy Health Systems, No. 99-3016, 8th Cir., 2000)

Advice: As crazy as it sounds, you can't fire someone who moonlights in a similar job during her medical-related FMLA leave.

Remember that there's a big difference between the leave standards of the FMLA and those of the Americans with Disabilities Act (ADA). To win protection under the ADA, people must prove they're unable to work in a broad range of jobs. The FMLA requires only that an employee is unable to work in his current job for his current supervisor.

If you have concerns about the legitimacy of a medical excuse, you can always ask the employee to get a second opinion.

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