FMLA Leave from One Job and Not Another?

An employee has requested a 3-month unpaid leave of absence because she has exhausted herself by trying to rehab a bum knee and continuing to work.  Her knee is getting better but she is spread pretty thin and needs time off.

Her manager supports the request and plans to hold the job open until she can return.  

 I wondered whether this might be FMLA-eligible, and was planning to explore with her and say that in order to request FMLA leave she would need to have her physician fill out the Medical Certification form.  When we talked she mentioned that she has a part-time job that she was not planning to take a leave from, her interest was in reducing her total hours, not eliminating them completely.

 I don't know what to do with that information.  Do the FMLA guidelines offer any guidance?  What would you do?





  • 5 Comments sorted by Votes Date Added
  • At this point, you need to see if this employee is eligible for FMLA leave. First, Does the employee have 1 year of service and at least 1250 hours in the last 12 months? I am assuming that you, as the employer, fall under FMLA (50+ employees in 75 mile radius).  If so, then you need provide the FMLA paperwork regardless of what she is doing at her other job.  It could be that the essential duties are different. Or that she doesn't have FMLA protection there because she hasn't worked enough hours.  That is totally outside whether she is eligible at your company.  There is no combination of jobs that matters.  The only time it might help is if you are trying to prove fraudulent use of FMLA, but even a second job doesn't automatically prove that.

    That said, you are required to give her the job protection, even intermittently if this falls under a "serious medical condition" and you can only determine that after you receive the certificaiton back. If she refuses to have a certification done, then she would lose her FMLA rights.

  • I agree with HRforMe, if you are an FMLA covered employer and the employee is FMLA eligible and has a qualifying event get the certificate from the health care provider and see what it says. You may also want to look at your internal policies for conflicts i.e. a moonlighting or outside employment policy.
  • Thanks, I should have said that we and the employee fall under the broader qualifications you specified.


    You both raise good points about the reasons why the second job wouldn't be relevant, and why I should make sure the situation doesn't conflict with other internal policies.

     I agree that I should offer and if she chooses not to apply for whatever reason then that is her call.


  • [quote user="CarolL1999"] I agree that I should offer and if she chooses not to apply for whatever reason then that is her call.[/quote]

    You might want to consider provisionally counting absences as FMLA pending certification and then leave it up to her to get the cert.  That way, you have definitely put the ball in her court and you cannot be put in the position of her saying, 12 weeks down the road, that she was told it was OK or otherwise complicating the situation.

  • I agree with TXHR.  It is always the employer's responsibility to deem the leave as FMLA.  Even if the employee tells you no, I don't want it, it's still your responsibility to deem it as FMLA.  Think about what might happen if you then attempt any type of disciplinary action or termination for anything even remotely related to attendance, or anything else really.  The employee will be all over "but you didn't give me FMLA when I needed it!" 
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