Working a Second Job while on FMLA Leave? What About Taking Vacation?

Imagine that you have a new mom out on unpaid Family and Medical Leave Act (FMLA) leave who decides to do a work-from-home job during her leave so her family has a source of income. Or, imagine that you have another employee out on FMLA leave who decides to take a Caribbean cruise to de-stress. As an employer, what is your response to these situations? Are you inclined to cry “foul” and take steps toward terminating employment? If so, please take a moment.

From the perspective of the federal statute and associated regulations, outside employment by an employee on FMLA leave is not prohibited unless an employer has an established and uniformly applied policy that prohibits outside employment while an employee is on a paid or unpaid leave of absence during which benefits may be maintained. Thus, generally speaking, in the absence of such a policy, the employee may do as he or she chooses while on approved FMLA leave.

So you think, “Okay, we will just make sure we have a policy that prohibits an employee from outside employment while on a paid or unpaid FMLA leave.” Once again, not so fast. If you are a Colorado employer, you have state law to consider. Colorado Revised Statute § 24-34-402.5 makes it unlawful to terminate someone’s employment due to an employee’s engaging in any lawful activity off the employer’s premises during non-working hours unless one of two exceptions exists:

  1. The off-duty activity creates an actual or apparent conflict of interest, or
  2. The restriction relates to a bona fide occupational requirement.

 

So, our moonlighting new mom may be well within her rights to work at home during her leave. And, our employee who is looking to promote his return to good health by de-stressing in the Caribbean also may be within his legal right to take that trip. It depends on the medical certification provided by the health care provider. For example, did the health care provider specifically state that the employee was confined to bed rest, or that he or she could not travel, except to and from medical appointments?

Interestingly, the Massachusetts Supreme Court recently awarded a state agency employee nearly $1.3 million for his wrongful discharge. DaPrato v. Massachusetts Water Resources Authority (Mass. 2019). Mr. DaPrato was terminated after taking a fishing vacation to Mexico while on FMLA leave. The court found that “although the employer may have honestly believed it was complying with the FMLA when it terminated the employee, it lacked objectively reasonable grounds for its belief. The employer ignored the employee’s FMLA application and medical records when it investigated his conduct, and instead was unduly influenced by its outrage over the employee’s possible additional FMLA leave.”

So, employer beware. Questions about the FMLA? Call us. We are here to support you!