Opening a pizza restaurant is not FMLA leave


Employees are not protected by the FMLA when taking leave for an unqualifying reason

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

Key to Remember: In potential FMLA abuse situations, employers should investigate and allow employees to give their side of the story. Look at the absence pattern and listen to others who have input on the situation. If the employer finds the employee abused FMLA leave, it may fire the employee.

This article was written by Darlene M. Clabault, SHRM-CP, PHR, CLMS, of J. J. Keller & Associates, Inc. The content of these news items, in whole or in part, MAY NOT be copied into any other uses without consulting the originator of the content.


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