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Feb 5, 2016

By Eric B. Meyer

Last Monday, one of my favorite HR bloggers, Suzanne Lucas, aka The Evil HR Lady, addressed a reader question about whether a company can legally prohibit an employee from seeking other employment while on leave covered under the Family and Medical Leave Act.

As part of her post, Her Evilness asked for others to weigh in on the subject. Jon Hyman answered the call on his blog  yesterday, and he concluded that the legal answer depends upon the scope of the policy.

That is, if the company has a universal policy which precludes any employee on any form of leave (e.g., FMLA, vacation, sick, PTO, jury duty, bereavement, etc.) from job hunting, then it’s probably lawful.

Bad, but lawful.

What do I think? I think we have a problem here

Employers cannot use the taking of FMLA leave as a negative factor in employment actions, such as hiring, promotions or disciplinary actions. That’s FMLA retaliation.

Also, an employer is prohibited from interfering with, restraining, or denying the exercise of (or attempts to exercise) any rights provided by the FMLA. That’s FMLA interference.

So, in considering whether an employer can lawfully maintain a policy forbidding employees from job hunting on leave, one of the first things that crossed my mind was whether the employer’s policy has the effect of singling out folks on FMLA.

Thus, if an employer had a policy which precluded employees on FMLA — and FMLA only — from applying for other jobs, it would not only be retaliatory to discipline the employee, but it would also interfere with the employee’s rights under the FMLA.

How to get an FMLA interference claim

But, then it dawned on me that a universal no-job-hunting-on-any-form-of-leave rule could also lead to an FMLA interference claim. Here’s why:

An employee can take FMLA for any number of qualifying reasons, including:

  • The birth of a son or daughter or placement of a son or daughter with the employee for adoption or foster care;
  • To care for a spouse, son, daughter, or parent who has a serious health condition;
  • For a serious health condition that makes the employee unable to perform the essential functions of his or her job.

Regardless of the qualifying reason for taking FMLA leave, an employee on FMLA leave is going to have some “down time.” For example, a newborn will nap or a spouse with torn rotator cuff will be in physical therapy.

And consider an employee on FMLA leave for the employee’s own serious health condition. Maybe one that involves inpatient care at a hospital for a broken leg. That employee may be lying there in the hospital bed with a casted leg, and a laptop and the hospital wi-fi (or a smartphone or tablet), and submitting resumes online, or Skyping with a recruiter.

Does the employee’s job hunt — a few clicks on a keyboard — make the employee’s serious health condition any less serious?

Nope. Job hunt or not, the employee has the right to FMLA leave. So, were the company to deny the employee any of those FMLA rights, even if the employee is job hunting, it would be — yep, you guessed it — interfering with the employee’s FMLA rights.

Now, let’s get downright cynical

If I had a nickel for every time that a client named as a defendant in an FMLA lawsuit said to me, “But, Eric, we were planning on firing Employee X anyway. Employee X is a hot mess. Except, Employee X requested FMLA before we could complete the termination.

Sound familiar?

And you want to have a rule that forbids employees on FMLA leave from job hunting?


This was originally published on Eric B. Meyer’s blog, The Employer Handbook.