It may seem wrong for an employee who is out on disability leave to work another job. But don’t be so quick to fire her for lying about her medical condition—it could 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 that legal right.
Expect a lawsuit if you jump the gun and terminate because you assume the employee’s moonlight-ing is inconsistent with medical restrictions.
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’s job as an emergency technician required her to spend all day on her feet. But her diabetes sometimes caused severe leg pain. She got her doctor to approve a short medical leave.
Magaly was also studying nursing at night. Her supervisor soon learned that during her leave time, Magaly had progressed from classroom instruction to walking rounds at the hospital with nurses.
Thinking 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 when needed while shadowing the nurses. Therefore, she said, she wasn’t doing anything inconsistent with the medical restrictions at her emergency technician job.
She believed her supervisor wanted to punish her for taking leave. The court sided with Magaly and sent her case to trial. (Bernadotte v. New York Hospital Medical Center of Queens, No. 13-CV-965, ED NY, 2014)
Sample policy: Employee moonlighting
“An employee may hold a job with another organization as long as he or she satisfactorily performs his or her job responsibilities with XYZ. All employees will be judged by the same performance standards and will be subject to XYZ’s scheduling demands, regardless of any existing outside work requirements.
“All employees engaged in outside employment must immediately inform their supervisors in writing. Failure to disclose or misrepresent outside employment may result in disciplinary action, up to and including termination.
“If the Company determines that an employee’s outside work interferes with performance or the ability to meet the requirements of XYZ as they are modified from time to time, the employee may be asked to terminate the outside employment if he or she wishes to remain with XYZ. Outside employment will present a conflict of interest if it has an adverse impact on XYZ.”
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