John, your employee, is on leave under the Family and Medical Leave Act. One
afternoon you see him playing golf during what would normally be working hours.
The next afternoon you see him working at a local grocery store. Is John abusing
his rights under the FMLA, and can you terminate him for these activities?
Before making a hasty decision, let's look at how the Department of Labor
views such activities. In the Compliance Guide to the Family and Medical Leave
Act it says:
"Employers with established policies regarding outside employment while
on paid or unpaid leave may uniformly apply those policies to employees on FMLA
leave. Otherwise, the employer may not restrict (the employee's) activities. The
protections of the FMLA will not, however, cover situations where the reason for
leave no longer exists, where the employee has not provided required notices or
certifications, or where the employee has misrepresented the reason for the
leave."
Unless we have specific policies restricting employment while an employee is
out on leave, we are not able to take action against an employee who works in
another job while on valid FMLA leave. According to the Department of Labor
statement, we cannot restrict any other activities that the employee does,
either.
Therefore, if you see an employee engaging in an activity that you think is
inappropriate for someone on FMLA leave, take a deep breath and either ignore
the situation or determine if the leave is valid before taking any action.