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Misuse of FMLA...


Question: One of our employees just informed us that a co-worker who is out on Family Medical Leave (FMLA) has been working another job during his leave time. We investigated and found it was true. Can we terminate him?

Answer: In Stekloff v. St John’s Mercy Health Systems, the 8th Circuit ruled that Stekloff (an employee that was on FMLA leave from St. John’s for emotional distress and working another job) was protected by the FMLA, even if she was doing essentially the same job for another employer. The court said she was not obligated to prove she was unable to work in other environments – only that she could not work in her current job. One valid reason for moonlighting may be that the employee works the second shift and can not find a caregiver during that time period, however, they can work in the morning when help is available. If you have a policy in your handbook that forbids moonlighting, you can enforce discipline on an employee while moonlighting on FMLA leave.

Be sure to do a thorough investigation and consult your attorney before you terminate an employee for FMLA abuse.


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