I was recently asked if an employer may require an employee who was taking leave under the Family and Medical Leave Act (“FMLA”) to return to work after the employee was seen working his second job—refereeing school basketball games—while on leave. In this particular case, the employee was taking FMLA leave to care for his daughter, who had a serious health condition. 

The FMLA does not prohibit outside employment by an employee on FMLA leave, unless the employer has a uniformly-applied policy governing outside employment while on periods of leave. Even if an employer has a policy prohibiting outside work, however, it still would not have grounds to request that the employee return to work from FMLA leave; instead, it would have grounds to discipline the employee for violating the prohibition on outside employment, just as it would any other employee who was non-FMLA leave.  Employees on FMLA leave are to be treated consistently with other employees on other forms of paid or unpaid leave.  In that case, the employer might consider informing the employee that it was aware that he was working while on leave in violation of the policy.

An employer may be concerned, however, that the employee is fraudulently claiming FMLA leave. An employer that does not have a policy against outside employment while on leave may not deny an employee benefits under the FMLA unless the employee fraudulently obtained the FMLA leave.  Thus, if you have an honest, good-faith belief that an employee is abusing FMLA leave, you have the right to investigate that belief and take appropriate disciplinary action if you discover that the employee is, in fact, abusing the leave.  In the case I was presented with, however, it was important to keep in mind that the employee was not on FMLA leave because of his own health condition; rather, he was taking leave to care for his daughter, who had a serious health condition.  It very well may be that an employee is required to be home with his daughter during your normal working hours, but another caregiver is available during the hours when he is refereeing basketball games.

On the other hand, if an employee is on FMLA leave for his own serious health condition, and you discover he may be fraudulently claiming the leave, you can, and should, investigate the matter. If you have an honest belief the employee is fraudulently taking the leave, you have the right to discipline the employee for fraud, just as you would any other employee who committed fraud.  For example, last year in Texas, a federal court granted judgment for an employer after it fired an employee who was on FMLA leave, supposedly for her own serious health condition, but was spotted attending a Beyoncé concert . . . in the employer’s suite at the stadium.  (Seriously.)  It is important to note that, even with such egregious evidence, the employer did not immediately fire the employee.  Instead, the employer asked the employee to contact the Human Resources Director to explain how she could attend a Beyoncé concert while on FMLA leave.  When the employee failed to respond, the employer discharged her for not only attending the concert while on leave, but also for refusing to communicate with the employer when requested.  The court noted that the employer suspected the employee was committing fraud by claiming a benefit to which she was not entitled; the employer attempted to investigate; but, the employee refused to cooperate.  Keep in mind that it is possible that an employee may be able to work at a different job (or attend a Beyoncé concert) even if she has a condition that prevents her from working for you.