Working While on FMLA Leave

working-while-on-fmla-leaveMany employees who request leave under FMLA (Family Medical Leave Act) for one of the approved medical conditions are concerned about their ability to work at a different job, possibly part time, while being on FMLA leave. The are some good news for employees on FMLA. The California Supreme Court recently held in Lonicki v. Sutter Health Central that if a full-time, during the period in which medical leave was sought, continued to perform a similar job for another employer on a part-time basis, this does not conclusive establish the ability to do the job for the original employer. A showing that an employee is unable to work in the employee’s current job is enough to demonstrate incapacity.

The court further explained that when a serious health condition prevents an employee from doing the tasks of an assigned position, this does not necessarily indicate that the employee is incapable of doing a similar job for another employer. For example, a job in the emergency room of a hospital that commonly treats a high volume of life-threatening injuries may be far more stressful than similar work in the emergency room of a hospital that sees relatively few such injuries. And again, the circumstance that one job is full time and the other is part time may be significant.