Question: We have an employee on short-term disability (STD) with a doctor’s note stating he is not fit to return to work. However, we have recently learned the employee is performing work around his farm. Is there anything we need to be doing differently administratively?
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Answer: Thank you for your inquiry. This scenario is one that often comes up with employers – the concern that an employee who has a serious health condition and has medical certification indicating he cannot return to work to perform his job duties should not be able to do other work requiring physical exertion on his farm. The employee’s work on his farm may call into question his legitimate need for leave.
One way to help limit these types of situations is to ensure that the employer is requiring sufficient medical certification indicating that the employee cannot perform the essential functions of his regular job and continues to need the short-term disability leave.
As a general rule, employers may require employees to provide medical certification to support their need for medical leave such as short-term disability leave. If the employee is covered under the Family and Medical Leave Act (FMLA), the FMLA medical certification form requires the employee’s health care provider to provide a statement or description of appropriate medical facts, which must be sufficient to support the need for leave and may include information on symptoms, diagnosis, hospitalization, doctors’ visits, medications, any necessary referrals for evaluation or treatment.
In addition, the medical certification should provide information sufficient to establish that the employee cannot perform the essential functions of the employee’s job, as well as the nature of any other work restrictions, and the likely duration of such inability.
If the employee is not covered by the FMLA, you still may require medical certification of his continued need for leave and request similar information as allowed by the FMLA.
So, depending on the extent of the medical condition and the medical certification provided, the fact that the employee is able to perform work on his farm may call into question his need for short-term disability leave. The employer may follow up with the employee in this situation.
For example, the FMLA allows the employer to request additional medical certification if the employer has some reason to doubt the validity of the initial certification. But, if the employee’s work on his farm does not conflict with his medical certification, then he should be allowed to continue on the leave even if he is performing the farm work.
Note, too, another possible way of addressing this type of work during a leave is by implementing a policy that limits employees on leave from performing other jobs, including arguably the employee’s farm work. The FMLA allows an employer to apply a policy restricting outside employment to employees who take FMLA leave as long as the policy is applied uniformly. (See 29 C.F.R. §825.216(e)).
However, if the employer does not have such a policy, it cannot deny the employee any FMLA benefits if an employee takes a second job or continues working at a second job while taking FMLA leave from his primary job unless the FMLA leave was fraudulently obtained. (29 C.F.R. §825.216(e)). In other words, an employee on FMLA leave may work a second job unless doing so indicates that the employee is using FMLA leave improperly, such as if the employee claimed to have a serious health condition that prevents him from working any job, not just the employer’s job.