By ECRM’s Leave Administration Team
The Family and Medical Leave Act (FMLA) is complicated, to say the least. Employers who are covered by this complex law have a legal obligation to ensure that their eligible employees are granted leave in full compliance with the law. Employers who mishandle FMLA leaves may find themselves in court and paying out hefty fines or settlements – regardless of their best intentions.
To assist covered employers, our leave administration team offers the following clarifications regarding some of the most common erroneous assumptions when it comes to an employee’s FMLA rights. If you have questions about the list below, or any other FMLA concern, please contact our team!
- FMLA may allow an employee to work a second job while out on FMLA from their primary job.
If the employer has a uniformly applied policy governing outside or supplemental employment, such a policy may continue to apply to an employee while on FMLA leave. An employer who does not have such a policy may not deny benefits to which an employee is entitled under FMLA on this basis unless the FMLA leave was fraudulently obtained.
If you want to prohibit an employee from working a second job and tighten up your FMLA compliance, it is critical that you maintain a uniformly applied no-moonlighting policy that prohibits work while on FMLA leave and any other form of leave. Additionally, the policy should be distributed and available to all employees, and they should be reminded of it when leave begins.
Secondly, if you learn that an employee is working another job while on FMLA leave, you should:
- Confirm these facts and inform the employee that you are aware of the second job
- Confirm the employee’s acknowledgement and agreement that your policies prohibit moonlighting
- Determine the duties of the other job and compare to the employee’s regular job
- Compare the job duties with any medical restrictions as outlined on the medical certification form. If you do not have a no-moonlighting policy, be sure to investigate the relationship between the two jobs. In the case of anxiety, for example, the employee may have an argument that he/she cannot perform the work of a particularly stressful job (e.g., emergency room doctor) but can work a desk job in an office where split-second decisions do not have to be made.
- Investigate fully and discuss with your employment attorney before taking action. If you have a uniformly applied policy governing outside or supplemental employment, it may continue to apply to an employee while on FMLA leave. If you do not have such a policy, you may not deny benefits to which an employee is entitled under FMLA on this basis unless the FMLA leave was fraudulently obtained.
- FMLA may allow an employee to take vacation while on FMLA.
An employee who is out on FMLA leave may go on vacation or engage in activities so long as the employee does not violate FMLA leave requirements. You may not treat the mere fact that an employee went on vacation while on FMLA leave, standing on its own, as grounds for an adverse employment action. Vacationing while on FMLA leave may be allowed, depending on the circumstances. So, when making potential leave abuse determinations, employers and their legal counsel should be sure to consider the activities engaged in as they relate to the claimed reason for leave. Employers should not automatically assume that the employee may have misled them. Put another way, an injured foot can recover the same whether poolside in the Caribbean or at home on the couch.
- FMLA allows employees to take FMLA leave for reasons related to domestic violence issues.
FMLA leave may be available to address certain health-related issues resulting from domestic violence. An eligible employee may take FMLA leave because of his or her own serious health condition or to care for a qualifying family member with a serious health condition that resulted from domestic violence. For example, an eligible employee may be able to take FMLA leave if he or she is hospitalized overnight or is receiving certain treatment for post-traumatic stress disorder that resulted from domestic violence.
- FMLA allows employees to take FMLA leave to donate an organ to a non-relative.
An organ donation can qualify as a serious health condition under the FMLA when it involves either inpatient care or continuing treatment as defined in the regulations. Organ-donation surgery commonly requires overnight hospitalization and that alone suffices for the surgery and the post-surgery recovery to qualify as a serious health condition.
- FMLA may allow an employee to care for a child over the age of 17.
Eligible employees may use FMLA leave to care for their child who is 18 years of age or older if the child is incapable of self-care because of a disability as defined by the ADA, has a serious health condition as defined by the FMLA, and needs care because of the serious health condition. A disability under the ADA is a mental or physical condition that substantially limits one or more of the major life activities of an individual, such as working. Major depressive disorder, bipolar disorder, obsessive compulsive disorder, and schizophrenia are a few examples of mental health conditions that may substantially limit one or more of an individual’s major life activities when active. A mental health condition requiring an overnight stay in a hospital or residential medical care facility would be a qualifying serious health condition under the FMLA.
- FMLA may allow an employee to care for a sibling.
FMLA leave to care for a relative is generally limited to caring for a spouse, son, daughter, or parent. An eligible employee standing in loco parentis to a sibling who is under 18, or who is 18 years of age or older and incapable of self-care because of a mental or physical disability, may take leave to care for the sibling, if the sibling has an FMLA-qualifying serious health condition.
- FMLA may allow an employee to work no more than 40 hours/workweek.
Employees with proper medical certifications may use FMLA leave in lieu of working required overtime hours. The regulations clarify that the hours that an employee would have been required to work but for the taking of FMLA leave can be counted against the employee’s FMLA entitlement. However, employers must select employees for required overtime in a manner that does not discriminate against workers who need to use FMLA leave.
- FMLA may allow employers to count FMLA leave against an employee for bonus opportunities.
Under the regulations, an employer may deny a bonus that is based upon achieving a goal, such as hours worked, products sold or perfect attendance, to an employee who takes FMLA leave (and thus does not achieve the goal) as long as it treats employees taking FMLA leave the same as employees taking non-FMLA leave. For example, if an employer does not deny a perfect attendance bonus to employees using vacation leave, the employer may not deny the bonus to an employee who used vacation leave for a FMLA-qualifying reason.
If you are not sure if your organization is covered by FMLA, or if you know that you are covered and would like help administering FMLA leaves — or any other leaves of absence — please contact our leave administration team by calling 724-864-8745 or emailing us at hrhelpline@eastcoastrm.com.
Employers with any questions about safety, workers’ compensation, or any other human resources issue, also may contact East Coast Risk Management at the number above. We will be happy to help!
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