Q. The minor child of one of our employees has a disability. She was approved to be his personal care attendant (PCA) and requestedto see if she would like to do this as a job going forward. If for some reason she decides she doesn’t want to be his PCA, she wants to be able to return to her job here. I know that is available to care for a child, but can she use FMLA as a way of trying out a new job?
A. This is a unique and interesting twist on the FMLA. In the end, although Congress may have never considered this scenario, I think the employee’s request qualifies for FMLA leave.
Because the leave is to care for her son with a serious health condition, it is among the types of leaves authorized by the FMLA.
The fact that she’s “moonlighting” while on leave doesn’t disqualify her. The job she will be performing is one that she can perform while caring for her son, something that is not possible in her job with you. If she remains on leave after her 12 weeks of FMLA entitlement expires, you can terminate her at that time.
The downsides to treating this as FMLA leave are the need to keep her job available for the 12 weeks, and the possibility of continuing to provide her with benefits during the period of her leave.
With regard to benefits, this raises another interesting issue. Employers are entitled to recover benefits costs if the employee quits during the leave or fails to return after 12 weeks. The employer is not entitled to recover these expenses if the reason the employee fails to return to work is the continuation, recurrence or onset of the serious health condition.
On one hand, the child’s disability probably won’t go away. On the other hand, it is clear that the employee’s failure to return will be because of her choice to switch jobs and become a PCA, not because of the continuation of his disability. Because the potential costs of a legal battle could dwarf the costs of her benefits over the 12 weeks of her FMLA leave, it probably isn’t worth pushing this issue too far. However, you might want to raise with her the possibility of your right to recoup these expenses. That might encourage her to be open about her plans regarding her continued employment.
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