Our company does not have a Moonlighting Policy. We do client care in the homes of our clients.

We have an employee who fell and broke her hip while skiing. She received a note from her doctor stating she can return to work with lifting restrictions and the use of a walker. The employee's supervisor told the employee that she would create a safety concern if she returned to work with these restrictions. FMLA information was sent to the employee last week and has not been returned.

The mother of the client called the agency and informed us that our employee is working for the family as an independent contractor. The mother went on to say that our employee plans on returning to work with us so she can continue to receive health benefits. Do we have an obligation to provide FMLA benefits if the employee is working for another employer?


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  • Generally, you have to have your moonlighting policy in writing in advance of the FMLA event.  Even so, the employee has to provide a cert if yuo ask for one: it is an entitlement of the employer and you should seek one to ensure you have an FMLA situation.  I assume you have done the analysis to determine if the employee (and the Company) are FMLA qualitifed, regardless of the condition.

    Either the employee will return to work timely or she won't.  Follow your FMLA processes and forget about the employee's benefits.  That way, you aren't likely to be tempted to do something improper.

  • Assuming that you have already determined that the employee is covered by FMLA... 

    I would think that you might be in a sticky situation.  If the employee is ready and willing to return to work and has a doctor's release specifiying any restrictions and you (the company by way of the supervisor) refuse to return her to work because you don't think it would be safe, you may run the risk of interfering in FMLA rights.  If you have a good job description that includes the physical requirements and working conditions, I would consider sending that to the doctor so that he/she can make specific, informed recommendations/restrictions.

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