A state government official has stepped down after the Better Government Association and news outlets began investigating a long pattern of Family and Medical Leave Act absences that, they said, smelled fishy. Namely, the Illinois Department of Natural Resources deputy director missed more than three months of work, mostly using paid sick time, to fish for bass at professional tournaments in Oklahoma, Tennessee and Michigan.
DNR officials asked Travis Loyd to resign for sick time abuse because he was being paid to fish ($31,000 in tournament winnings since 1998 that he reported as income to the state of Illinois). This sideline violated a clause in DNR’s policy and procedure manual stating: “An employee shall not be granted FMLA designated leave of absence for the purpose of seeking or taking employment elsewhere.”
Loyd said that he took time off under the FMLA because he was “under doctor’s orders to go fishing” to help reduce stress caused by a medical condition. He says that DNR officials knew that he was fishing while sick.
Loyd’s doctor, Tricia Warner of Mount Vernon, reportedly confirmed that she told Loyd in an email that she encouraged his participation in activities he found enjoyable and relaxing. Loyd insists his superiors were given that information when they approved his leave.
Loyd was at a pro fishing tournament in Florida when he got the call to resign, and he agreed, even though he claims he’s done nothing wrong.
Moonlighting and FMLA
FMLA regulations provide that an employer may have a policy specifically prohibiting employees from working a second job while on FMLA leave. (See 29 C.F.R. §825.216(e).) The policy must be in writing before any such request is denied and must be applied uniformly to all employees. If the employer does not have such a written policy, though, the employee cannot be prohibited from working in a second job during FMLA leave as long as the employee meets the requirement for leave from the primary job.
For example, in Stekloff v. St. John’s Mercy Health Sys., No. 99-3016 (8th Cir. July 12, 2000), the court declined to grant summary judgment to the employer on a claim that the employee did not have a serious health condition because during the period of FMLA leave from her employer she engaged in work for a different employer. The court held that the “inquiry into whether an employee is able to perform the essential functions of her job should focus on her ability to perform those functions in her current environment.” The fact that an employee can work in a second job, however, might call into question whether he really does have a serious health condition and might provide a basis to request a second medical certification opinion.
Employee Notice Requirements
Under FMLA, an employee must notify the employer as soon as possible each time that a need for the use of statutory leave arises. The employee also must respond to employer questions aimed at determining if the specific leave request is protected. If he or she fails to provide information in response to the employer’s legitimate clarifying questions, the particular absence will not be covered, and regular employer policies — including discipline for inappropriate absences — may come into play.
The notice originally provided by the employee under FMLA can be oral or written and need not specifically reference FMLA leave. However, the employee’s communication must provide enough information to let the employer know that the particular leave request may be covered by FMLA (and also the anticipated timing and length of the needed leave).
An employer may have an obligation to inquire about whether the leave is FMLA-qualifying, but that duty arises only when the employee provides adequate notice.
The U.S. Department of Labor’s regulations contain details on when such contact and notification is to take place. For leave that is foreseeable, the employee generally must provide at least 30 days’ advance notice of the need for leave when aware of that factor, and it is feasible and practical to provide that notification. If that lengthy advance notice is not possible (for example, the employee does not know precisely when leave will be required), he or she must provide that information as soon as notice is both possible and practical.
Extra Leave Not Covered Under FMLA
Many employers provide levels of leave protection that exceed statutory minimums, whether those relate to quantities of paid leave not mandated by federal or state law, or additional relationships that may trigger such rights under policies or collective bargaining agreements.
In some instances, in the application of company policies, or because of the individual’s condition, history, or other factors, employers may feel it prudent to provide more leave than the law or their policies spell out precisely. Making individualized decisions of the sort — while legally required in some cases and compassionate in others — always leaves concerns about precedent being established in not treating individuals identically, and the potential such decisions might create for complaints of disparate treatment of one sort or another in the future.
Employer Takeaway
Fishing for therapeutic purposes to help alleviate symptoms of a serious health condition may qualify an employee for FMLA leave. However, employers are not required to tolerate a clear case of what appears to be FMLA leave abuse.
To curb FMLA abuse and to help structure a defense to FMLA claims, employers must remember to work within the confines of FMLA to structure policies that help regulate and control FMLA and other leaves of absence.