Some employees may work a second job while on Family and Medical Leave (FML) in a district or organization, and what the law says about that may be unexpected.
The shocking truth
While it may not come up often, it is not unheard of for an employee to work a second job while on FML. Employers may become aware of these situations and wonder what course of action to take, if any. It might seem safe to assume if an employee is on leave due to an FML qualifying reason, the employee would not be able to perform work for another employer. However, according to the Society for Human Resource Management (SHRM), even if the job is similar in nature, an employee may still work for another employer while on FML.
The first thing to consider is whether there is a policy in place regarding outside employment. If such a policy exists, then employees on FML may be subject to the policy’s provisions. Districts will want to ensure that the policy is applied consistently, regardless of the leave status of the employee.
If no such policy exists, then employees may be within their rights to continue their secondary jobs. If an employer doubts the continued need for FML due to information received, they have the right to request recertification. Recertification requests cannot be made in the cases of baby bonding and can only occur once every 30 days or within the time specified in the original medical certification. Refer to this FMLA Fact Sheet for more information, and, as always, ensure consistency with the administration of leave.
Policy or no policy
Many school districts have a policy in place regarding working a second job. Districts should check TASB Policy DBD (LOCAL) for specific provisions. A typical district policy outlines requirements for disclosing outside employment that may create a potential conflict of interest to an immediate supervisor.
If an employee violates the guidelines of the established policy, employers can take corrective action. FMLA Insights recommends ensuring the policy is applied equitably across all employees, whether on leave or not.
Patti Redding is an associate consultant at TASB HR Services. Send Patti an email at email@example.com.
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