Can You Work On FMLA Leave? – 2023 Workers’ Comp Advice
The Family and Medical Leave Act (FMLA) allows certain employees to take up to 12 weeks of unpaid, job-protected leave per year. It provides employees with the right to retain their group health benefits during their leave, and to return to their job afterward.
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What is the FMLA?
The Family and Medical Leave Act (FMLA) is a federal law that entitles eligible employees to take unpaid, job-protected leave for specific family and medical reasons. This allows employees to take time off work without fear of losing their job or health insurance coverage, and to return to their job or an equivalent position upon their return.
The FMLA applies to all public agencies, including state, local, and federal employers, as well as private employers with 50 or more employees within a 75-mile radius. To be eligible for FMLA leave, employees must have worked for their employer for at least 12 months, have worked at least 1,250 hours during the previous 12 months, and work at a location with at least 50 employees within a 75-mile radius.
Under the FMLA, eligible employees can take up to 12 weeks of unpaid leave during a 12-month period for the following reasons:
- Birth and care of a newborn child
- Adoption or foster care placement of a child
- Caring for a spouse, child, or parent with a serious health condition
- Recovery from an employee’s own serious health condition that makes them unable to perform their job
- Any qualifying exigency arising out of a family member’s covered active duty or call to covered active duty in the armed forces (up to 12 weeks of leave)
- Caring for an injured or ill covered servicemember or veteran (up to 26 weeks of leave)
For example, an employee may be eligible for FMLA leave to care for a newborn child or to care for a parent with a serious health condition. Alternatively, an employee may take FMLA leave to undergo a surgical procedure and recover, or to care for a spouse who is a covered servicemember with a serious injury.
Can You Work While On FMLA Leave?
Yes, under certain circumstances. According to regulation 825.216(e) of the FMLA, an employer may offer an employee on FMLA leave the opportunity to work in a light-duty job if the employee’s position is unavailable.
However, an employer cannot force an employee to work while on FMLA leave, and the employee must still fulfill the eligibility requirements for FMLA leave.
It is also important to note that any work performed during FMLA leave must not interfere with the employee’s need for FMLA leave or their ability to recover from the qualifying serious health condition.
Understanding FMLA Leave and Employer Interference
The Family and Medical Leave Act (FMLA) allows eligible employees to take up to 12 weeks of unpaid, job-protected leave per year for specific family or medical reasons. The law also requires that their group health benefits be maintained during the leave.
However, some employers may try to interfere with an employee’s right to take FMLA leave or retaliate against them for exercising their rights under the law.
What Constitutes Employer Interference with FMLA Leave?
Interference with FMLA leave occurs when an employer violates an employee’s FMLA rights or attempts to prevent them from exercising those rights. Examples of employer interference with FMLA leave include:
- Discouraging an employee from taking FMLA leave
- Threatening an employee who takes FMLA leave with discipline or negative consequences
- Refusing to authorize FMLA leave that qualifies under the law
- Making it difficult for an employee to return to work after taking FMLA leave
- Manipulating an employee’s work schedule to avoid granting them FMLA leave
What Can Employees Do to Protect Their FMLA Rights?
If an employee believes their employer has interfered with their FMLA rights, they can file a complaint with the U.S. Department of Labor’s Wage and Hour Division. They may also be able to file a lawsuit against their employer for violating the FMLA.
Employees who have been retaliated against for taking FMLA leave may also have legal recourse.
It’s important to note that FMLA interference claims can be complicated and may require the assistance of an experienced employment law attorney. If you believe your FMLA rights have been violated, it’s important to seek legal advice as soon as possible.
Communications About Leave Status and Requests for Documents or Things
If you are an employee with an approved FMLA leave, your employer is allowed to contact you regarding your leave status, return to work date, and other similar updates. Employers can request for periodic updates from employees regarding their leave status, treatment regimes, and progress of the illness.
The employer can also request documents or things, such as periodic medical updates or reports, medical certifications, or documents explaining the need for leave.
Employers can also require employees to provide periodic updates on their intention to return to work or they may request a medical certification confirming the need for leave. Employers who require such information from an employee must provide the employee with at least 15 calendar days to respond to the request.
The employee must provide a complete and sufficient certification, otherwise, the employer can deny the leave.
Upon returning to work, employees may be required to undergo a fitness-for-duty certification to demonstrate that they are able to resume their job duties.
What Types of Work Are Permitted While on FMLA Leave?
It is understandable that some employees might be concerned about their employment status while on FMLA leave, including whether they can work during this time. The good news is the FMLA does not prohibit employees from working another job while on leave.
However, there are some limitations that employees should take note of.
According to FMLA regulation 825.216(e), “If the employer has a uniformly-applied policy governing outside or supplemental employment, such a policy may continue to apply to an employee while on FMLA leave.” In other words, if the employer has a policy that prohibits employees from working another job while employed with them, the employee must follow that policy even during their FMLA leave.
It is important to note that employers cannot have a policy solely based on the employee taking FMLA leave.
In cases where an employee is engaged in work that is not prohibited by the employer’s policies, the employee may continue that work while on leave. However, the employee must not exceed the number of hours that would have been worked if they were not on leave.
It is also important that the job they are working on does not conflict with the reason for their leave. For instance, if an employee is on FMLA leave because they were injured while working, they cannot work another job that poses a risk to their safety or hinders their recovery.
It is also important to understand that FMLA leave is a job-protected leave. Employers must reinstate employees who take FMLA leave to the same or an equivalent position upon their return.
However, employees are not guaranteed their actual job upon return. Per FMLA regulations, an employee has no greater right to reinstatement or other benefits and conditions of employment than if the employee had been continuously employed during the FMLA leave period.
Voluntary Work Is Permitted
Under the Family and Medical Leave Act (FMLA), employees are entitled to 12 weeks of unpaid, job-protected leave per year. While on FMLA leave, an employee may work another job or engage in voluntary work as long as it doesn’t interfere with their medical condition that caused the leave.
It is important to note that if an employer has a policy governing outside or supplemental employment, that policy may continue to apply to an employee on FMLA leave. Employers also have the right to inquire about an employee’s outside work or volunteer activities to determine if it is interfering with the employee’s ability to work and perform their job responsibilities.
Can Your Employer Force You to Use Paid Time Off During FMLA Leave?
When an employee takes Family and Medical Leave Act (FMLA) leave, the employer is not required to pay them for the duration of their absence. However, the FMLA allows an employee to use any accrued paid leave during their absence, including vacation time, sick leave, or personal days.
Employers can also require or allow employees to use this paid time off (PTO) during the FMLA leave period.
Employers can also enforce their own policies regarding outside employment during FMLA leave. FMLA regulation 825.216(e) states that if the employer has a uniformly-applied policy regarding outside employment, this policy can apply to employees who are on FMLA leave.
If an employee chooses to work while on FMLA leave, their employer can ask about their ability to perform their duties and responsibilities under the policy.
It is important to note, however, that an employer cannot force an employee to use their PTO during their FMLA leave. The employee has the right to decide whether or not to use their accrued PTO during their absence, and the employer cannot retaliate against them for choosing not to use it.
In summary, employers can have policies regarding outside employment during FMLA leave, but they cannot force employees to use their PTO during their absence. Employees have the right to use their accrued PTO during FMLA leave, but the employer cannot retaliate against them for choosing not to use it.
What Happens if An Employer Violates FMLA Leave Regulations?
If an employer violates FMLA leave regulations, they may face serious legal consequences. The Department of Labor can conduct an investigation and, if a violation is found, the employer can be ordered to pay damages, including lost wages, benefits, and job reinstatement.
Additionally, the employer may also be subject to fines imposed by the Department of Labor. Currently, each violation of these regulations is subject to a fine of $110.
Employers may also face legal action from employees who have been denied their FMLA leave or experienced other forms of prejudice or retaliation for taking FMLA leave. This can result in costly lawsuits and damage to the employer’s reputation.
It is important for employers to adhere to FMLA leave regulations and avoid any violations to ensure the well-being and protection of their employees, as well as to avoid any legal consequences.
Conclusion
Employees are entitled to up to 12 weeks of unpaid, job-protected leave per year under the Family and Medical Leave Act (FMLA), with their group health benefits maintained during their leave. While the FMLA does not prohibit employees from working another job while on leave, any uniformly-applied policy governing outside or supplemental employment established by the employer may continue to apply to employees while they are on FMLA leave.
Additionally, employees must be reinstated to their same or comparable position upon their return to work. Employers are not required to pay employees while they take FMLA leave, but they may elect to use accrued paid vacation or sick leave.
To avoid any issues with employers, employees should disclose any outside work or volunteering during FMLA leave, and employers are permitted to ask questions regarding the employee’s responsibilities and ability to work.
