Opening a pizza restaurant is not FMLA leave
Posted May 19, 2023
Randy (a fictitious name), who worked for the company for about four years, took unforeseeable, intermittent leave under the federal Family and Medical Leave Act (FMLA) for a chronic medical condition.
He was initially approved for a six-month period (December 20, 2019, until June 20, 2020), for:
- 1-3 episodes per month,
- 8-24 hours per episode, and
- 1-3 doctor visits and treatments per month.
Employee opens pizza restaurant
Soon after his leave was approved for the next six months (June 20, 2020, through December 20, 2020), Randy opened a pizza restaurant, in part due to being furloughed during the pandemic.
He would spend at least 30 to 40 hours a week at his restaurant while also working for the company. Randy began taking more time off and not always calling in, so the company gave him a written warning. His behavior continued and he was suspended.
Reports of potential FMLA abuse roll in
In addition to noting his increased absences, numerous members of the company's Human Resources (HR) department began receiving reports from supervisors indicating that Randy might be working at his restaurant on days he had called off. During one of Randy’s absences, a member of the HR department was near the restaurant and saw Randy in the parking lot. She took pictures showing Randy looking into a car trunk.
When asked about this, Randy said that he was heading home to get ready for work, but his daughter had his house key, and she was working at the restaurant. So, that’s why he was there when the picture was taken.
Employee is fired for misusing FMLA leave
The company eventually fired Randy for misusing FMLA leave. He filed a grievance with his union, but the arbitrator found that Randy “basically abandoned his job in favor of his business,” and that he used his FMLA leave to cover his absences. As a result, the employer had just cause to fire him.
Reference: Aleris International and United Steelworkers, Local 9443-01
This article was written by Michelle Higgins of J. J. Keller & Associates, Inc.
Looking for more on HR compliance?
Get the information and products you need to stay on top of industry changes and comply with regs.
J. J. Keller's free HR SafetyClicks™ e-newsletter brings quick-read safety and compliance news right to your inbox.Sign up to receive HR SafetyClicks™