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Crack down on moonlighting during FMLA leave

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in FMLA Guidelines,Human Resources

Do you have employees who take intermittent FMLA leave to deal with their own health conditions? If so, you might worry that they sometimes abuse that leave by calling in when their condition supposedly flares up, only to go to work at a second job. It’s happening more and more.

Here’s how to handle that situation: Try to get good surveillance showing the supposedly incapacitated employee working elsewhere. You can then see if his second job violates the terms of his intermittent leave. If so, he clearly didn’t really need intermittent leave that day.

Recent case: Gerald Butler worked for the U.S. Postal Service as a mail processing clerk. He was approved for intermittent leave for edema, or excessive swelling in his left leg. The condition required him to periodically elevate his leg and place cold compresses on it.

The Postal Service got video showing Butler working at a second job, picking up and distributing a truck load of newspapers every night from around midnight to a little past 1:00 a.m. He was clearly doing strenuous work, which his doctors said was outside the scope of his intermittent leave medical restrictions.

When Butler was terminated, he sued, alleging retaliation.

But the court said the Postal Service had legitimate reason to fire him for abusing his leave privileged by taking intermittent leave when his condition didn’t warrant it. (Butler v. Potter, No. 1:07-CV-22, ND FL, 2011)

Final note: Another approach is to simply ban moonlighting or second jobs altogether.

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