Yes, in two circumstances. First, you can discipline the employee if their other job violates your outside employment (aka moonlighting) policy. Second, you can discipline an employee who obtained FMLA leave fraudulently. If, however, you do not have a policy that specifically prohibits employees from working for other employers or if the employee’s work for the other employer is compatible with their health condition, then the fact that they are employed elsewhere during a leave is not cause for discipline. For instance, if the employee works a physically demanding job at Company A that they can’t perform because of a medical condition, they may still be able to work a desk job for Company B during leave.
The FMLA specifically allows employers to hold an employee on leave accountable to their uniformly applied moonlighting or outside employment policy. On the flip side, employers without such a policy can’t deny FMLA leave, including job protection and benefits continuation, to an employee just because they’re working elsewhere while on leave—unless you’ve got a case of FMLA fraud.
If you don’t have a moonlighting policy (or do but it’s not uniformly enforced), then the only other way to discipline an employee for working for another employer during their FMLA leave would be if their second job indicates that the employee lied to you about their serious health condition. For example, if the employee’s FMLA certification states that they need to be on bed rest to recover from surgery, and the employee is performing physical labor at the other place, you’ve got a case of FMLA fraud. Fire away! In grayer situations, however, proceed with caution. The safest approach would be to require a recertification in light of the new information that casts doubt on the employee’s stated reason for leave or continuing validity of their original certification. Disciplining an employee on FMLA leave without knowing all the facts can easily give rise to an FMLA interference claim.
Unless an employee was out on job-protected leave, such as FMLA or EFMLA, you are not required to return them to their original position or to an equivalent one (or bring them back at all). Given the impact of COVID-19 on business operations across the country, it’s not surprising that organizations may need to restructure their teams to stay afloat or remain competitive. That said, if employees who were furloughed or laid off are asked to come back to a job that feels to them like a demotion, they may be less inclined to accept the offer or may be less engaged in the new role than they were in their previous job.
If you need to restructure their position, it will be helpful to explain why that was necessary. People are generally much more accepting of change if they understand it, and less likely to claim discrimination if you’ve given them your business-related reason for the decision.
Most cases of the common flu do not meet the definition of “serious health condition” and would not be eligible for Family and Medical Leave Act (FMLA) leave.
Some cases of the flu, however, are severe or result in complications, and these have the potential to meet the FMLA definition of “serious health condition.” This is defined as an illness, injury, impairment, or physical or mental condition that involves inpatient care or continuing treatment by a healthcare provider. Continuing treatment means:
- The employee has been incapacitated for a period of more than three full days; and
- Consults with a doctor two or more times within 30 days, or
- Has one consult with a doctor and a regimen of continuing treatment.
If an employee is out sick with the flu for more than three days, consider whether the need for FMLA leave may exist. This doesn’t mean that you need to go through the whole FMLA process to determine eligibility for each flu absence; just that you shouldn’t automatically reject FMLA requests for the flu either.
Review each case based on the facts, keep the “serious health condition” definition in mind, and if the illness is severe, ask the employee to submit certification from a health care provider to support the their need for leave protection under the FMLA.
