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Employee working while on FMLA leave? Check certification

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in FMLA Guidelines,Human Resources

It can leave employers in the lurch when employees take FMLA leave. After all, the work still needs to be performed. But FMLA leave is a federal right, and you know you cannot interfere.

Occasionally, however, workers out on FMLA leave make a bad situation even worse by working for someone other than you.

If you find out that’s happening, it’s time to check the employee’s FMLA certification. If his doctor said he could do some work, the moonlighting probably is OK, and you can’t punish him. (If you could find light-duty work for him to do, however, he would have to work for your organization rather than somewhere else.)

But if the certificate says he’s “unable to perform work of any kind,” you can and should take action. Here’s how: Make certain he is in fact working elsewhere—something a private investigator can verify for you. When he returns, you’re within your rights to discharge him for dishonesty.

Recent case: Albert Lackman was fired from his job at a residential drug and alcohol treatment facility the day he returned from FMLA leave. He had taken a total of 12 weeks off for stress, insomnia, depression and anxiety. His doctor had certified that he could not perform any work at all and needed FMLA leave for a serious condition.

While Lackman was on leave, his supervisors suspected he was actually working as a real estate salesman. A private investigator arranged for Lackman to show her a number of houses and reported back that he was upbeat and “an enthusiastic salesman.”

The company fired Lackman the day he returned, based on the FMLA certification and his apparent dishonesty. Lackman sued, alleging he was entitled to his job back and that it did not matter whether he worked during leave.

The court agreed with the employer. It noted that had the employer known that Lackman was able to perform some work, it could have offered him light duty or modified work rather than lose his labor altogether. (Lackman v. Recovery Services, No. 06-2016, DC NJ, 2008)

Final note: If you do discipline an employee for working during FMLA leave, make certain that you specify the reason is dishonesty—not the inconvenience the leave caused. 

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