Basic FMLA/CFRA compliance is hassle enough, but employees keep finding new ways to make it just a little bit harder. Today, answers to tricky “during leave” issues…because “out of sight” is not “out of mind.”
Q. What if I find out that an employee is working another job or has been interviewing or inquiring about other jobs while on leave?
There is no prohibition in the family leave laws against employees having a second job, and California law strictly limits your ability to interfere with your employees’ lawful off-duty activities.
However, if you review the employee’s medical certification form and it says that the employee cannot perform the specific tasks he or she has been observed performing for the other employer, then the employee could be subject to termination for fraud.
Q. What about other activities that are inconsistent with the family leave restrictions?
FMLA and CFRA do not require employees who are on leave to lie in bed all day. Just because the employee has been seen at the mall or coaching a little league team does not automatically sound the fraud alarm.
As mentioned above, if the activity is inconsistent with the medical restrictions, there may be a fraud situation which you can handle according to your fraud prohibitions.
Finally, note that there is no prohibition under FMLA/CFRA on employees either looking for other work or having other jobs.
There may be a violation of an individual noncompete agreement—which, again, are difficult to enforce in California anyway—if the employee applies for work at a particular competing employer during family leave.
How To Comply with California and Federal Leave Laws — newly updated!
Q. What if we have a layoff while an employee is out on family leave?
As long as you can objectively show that employees who are on leave would have been included in the layoff if they had been at work at the time the reduction decisions were made, then you are entitled to consider and include those who are on leave in a reduction in force just as you would any other employee.
In other words, being on family leave does not entitle an employee to any preferential or “better” treatment than the employee would have received if he or she had not been on leave.
Make sure, however, that the employee who is on leave is not effectively penalized by your “objective” criteria for the layoff. For instance, if the criteria are based in whole or in part on “individual production levels” for the past 12 months,” you would need to pro rate or otherwise mitigate such criteria to make sure you do not automatically disfavor those who have been out on leave.
Be sure to notify those on family leave of their inclusion in the reduction at the same time that you notify all other employees in their comparative job group. In other words, do not wait until the employee returns from leave and then say, “Oh, we laid you off a month ago.”
Those on family leave should also receive the same COBRA notice, severance package offers, etc., as similar employees who are being laid off from your active workforce.
Botching an important leave-related issue: Don’t let it happen to you.
Q. What if the employee already was on a performance improvement plan, final warning, suspension, etc., at the time of going out on FMLA leave?
In these situations, you should extend the terms of the performance improvement plan or disciplinary action as if the leave had not occurred.
For instance, if the employee was in the middle of a 90-day performance improvement plan when going out on leave, when the employee returns from leave you should pick up where you left off.
Similarly, if the employee was due to serve a 3-day suspension, have the employee serve the suspension as soon as he or she returns from leave—just as if the leave had not intervened.
In tomorrow’s CED, more sticky FMLA challenges, and an introduction to the definitive reference guide on family leave in California.
Download your free copy of Notice Requirements for CFRA and FMLA: California Labor Laws today!