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The Family and Medical Leave Act (“FMLA”) was enacted to provide employees with unpaid leave from work in order to address and/or treat serious health conditions suffered by themselves or a close family member, so it follows logically that, if you need to use FMLA leave from your primary place of employment to address your serious medical condition, you can’t work at another job while on leave, right?  It seems obvious, but an employee in Pennsylvania recently thought he could get away with it.

In Dietrich v. Susquehanna Valley Surgery Center, the plaintiff/employee sued his former place of employment after he was fired once it was discovered that he was using FMLA leave from work to complete a construction project for a small business he ran on the side. The plaintiff/employee ran a landscaping business on the side, while he was primarily employed as an operating room technician for the defendant/employer. He also suffered from hemophilia, which caused him to apply for intermittent FMLA leave to address issues which he encountered from his disease. The defendant/employer initially became suspicious of the fact that almost every day the plaintiff/employee requested off to address his hemophilia happened to fall on Fridays or Mondays.  Then, on one occasion, the plaintiff/employee requested FMLA leave time off of work to finish a patio which he was constructing for a doctor associated with his employer. As one can imagine, the employer discovered the fact that the plaintiff/employee was actually completing a deck for one of its doctors rather than treating his hemophilia, and the plaintiff/employee was fired.

In upholding the defendant/employer’s decision to fire its employee, the Court, in Dietrich, stated: “Any employee, regardless of his or her disability or lack thereof, might reasonably expect their employer to take disciplinary action if he or she is absent from work and found to be instead engaging in some other side business. This is especially true if the employee failed to notify his or her employer of the impending absence, but such behavior can reasonably be seen as dishonest and worthy of discipline even if an excused absence was requested.”

The overall moral to be taken from Dietrich is that: an employee’s right to FMLA leave does not permit them to use that time to work and/or moonlight for another business. This is especially true where the employee has lied or been dishonest about his or her need for FMLA leave. The purpose of FMLA leave is to permit an employee to attend to a serious medical condition or disability without fear of losing their job, and it cannot be used to simply help balance an employee’s schedule.

If you even think that your employment rights have been violated or that you might need an employment lawyer, then call the right attorney to schedule a free and confidential consultation at 866-797-6040. Spitz, The Employee’s Law Firm is dedicated to protecting employees’ rights and solving employment disputes.


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