It may seem wrong for an employee who is out on disability leave to work another job. But firing her for allegedly lying about her medical condition may backfire in the form of a disability or retaliation claim.
That’s because taking disability leave is protected activity, and termination may be seen as punishment for exercising a legal right. Expect a lawsuit if you jump the gun and terminate because you assume the employee’s moonlighting is inconsistent with medical restrictions when it really isn’t.
The better approach is to wait and verify that she was doing work that she claimed she couldn’t do at your workplace.
Recent case: Magaly has diabetes and sometimes suffers from severe leg pain. Her job as an emergency technician required her to spend all day on her feet. When her leg pain flared up, she got her doctor to approve a short medical leave.
Her supervisor approved the leave, but knew that Magaly was also studying nursing when not at work, usually in the evening. The supervisor then found out that Magaly had progressed from classroom instruction to clinical education and had been following nurses on rounds. Thinking that this was inconsistent with the reason for her medical leave, the supervisor fired Magaly.
She sued, alleging disability discrimination and retaliation for taking disability leave.
She argued that she was able to sit down whenever she needed while shadowing other medical personnel during her clinical training. Therefore, she said, she wasn’t doing anything inconsistent with her medical restrictions. She told the court that she believed her supervisor wanted to punish her for taking leave and therefore fired her for allegedly deceptive behavior while on leave.
The court sided with Magaly and said her case could go to trial. (Bernadotte v. New York Hospital Medical Center of Queens, No. 13-CV-965, ED NY, 2014)
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