Applying for New Jobs While on FMLA

by Evil HR Lady on February 1, 2016

I work in a hospital where we just hired a new boss 15 months ago. She has literally run people off and fired several others. Her expectations are unreasonable. I have been hoping they were going to get rid of her, but it doesn’t look that way.

I have been needing shoulder surgery and have put it off. I decided to get the surgery done in hopes she might not be there when I come back. That doesn’t look like it is going to happen.

While I am out for surgery, I was informed of a new job in another hospital. It looks like no one has applied for the position.

My dilemma is, my employer does not know if I am out longer than the 12 weeks, that I will have my job when I get back. (That is in 3 weeks) My doctor states I will not be able to do CPR until after that time.  Human Resources has stated they can not promise me the job after the time FMLA is done. They will not let me do direct patient care with any restrictions.

Can I apply for this job while I am on leave? What is the consequence of doing so? Can they take my pay back? On one of the FMLA paperwork, it states no job hunting while on FMLA. Is that true? I do not want to be in some legal battle.

I do not want to miss this opportunity. I really would love this opportunity.

I am answering this question even though I’m not 100 percent sure of the answer. I’m hoping someone with a lot more knowledge will weigh in in the comments.

Here’s what I do know. FMLA leave itself doesn’t prohibit someone from job hunting. It does prohibit people from doing things that they shouldn’t be able to do, due to the terms of their leave. So, in your case, if you were out shoveling snow with your shoulder that is incapable of performing CPR, that would be an FMLA violation–since you’re clearly lying about your shoulder abilities.

But interviewing for a job doesn’t aggravate your shoulder, so it’s not a violation of your leave.

Now, the thing I don’t know about is your paperwork stating that you can’t apply for jobs while you’re on FMLA. I don’t know whether that is legal or not. Personally, I would never, ever, not in a million years approve putting that language on FMLA paperwork. Why? Because it seems like FMLA interference to me.

Why? Because are other employees prohibited from looking for new employment? Is it company policy that they fire everyone who goes on a job interview? If so, then there’s no need to put it in the paperwork. If not, then isn’t it a restriction on people on FMLA?

That’s my logic anyway.

But, let’s assume that it’s legal for them to punish you for job hunting while on FMLA. How can they punish you? They can fire you. They can demote you. They can give you less favorable shifts. But, they can only do this if they would do it to people who are also job hunting while not on FMLA. (I believe.)

My advice? Apply for the job. Your company policy will determine if you have to pay back health insurance premiums if you quit rather than come back from FMLA. It’s doubtful you’d have a job offer within 3 weeks anyway, and if you’re not cleared for work, they might well terminate you at that point anyway. (Which is legally sketchy, because ADA kicks in here and it might be considered reasonable to hold your job for another month or two.)

You hate where you work. You want to pursue this new opportunity. It’s doubtful your current company would find out. I’d interview.

But, I’d really like to learn more about the legalities of having that restriction on FMLA paperwork. Anyone?

{ 12 comments… read them below or add one }

Leah February 1, 2016 at 3:41 pm

From what I’ve seen on SHRM and the DOL, if you have a policy that which applies to people on FMLA (the examples they keep using are people with second jobs), you have to apply it to anyone no on FMLA or it’s a violation.

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Evil HR Lady February 1, 2016 at 4:18 pm

That’s what I thought. You can’t have a policy that just applies to people on FMLA

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Beth February 1, 2016 at 4:03 pm

Your company can ask for their portion of health insurance cost back if you do not return to work from your FMLA. This could be thousands of dollars. My advice: return from your FMLA, even if it is to give and work out your 2 weeks notice. If you are unable to return without restrictions make sure that you have the proper documentation on the restrictions and get the company to document if they are unable to accommodate them. Keep all documentation.

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Cary February 1, 2016 at 7:35 pm

Does this still apply if you’re declared permanently disabled from your job, or just if you leave for another job?

I also wonder if the new hospital is a different employer. I don’t know the system where the ops works, but I wonder if both hospitals are run by the same employer.

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Benefit World February 1, 2016 at 8:46 pm

The employer may not ask for their portion of the health insurance to be reimbursed to them. Please refer to the following found directly on the Federal Register. These are two small excerpted portions of a much more lengthy and detailed section. In my 20+ years of managing LOA’s, it’s important an employer address this in their documentation and/or Section 125 documents regarding the collection of payment for the employee’s portion of their premiums to mitigate losses while the employee is out on FMLA.

§825.209 Maintenance of employee benefits.

(a) During any FMLA leave, an employer must maintain the employee’s coverage under any group health plan (as defined in the Internal Revenue Code of 1986 at 26 U.S.C. 5000(b)(1)) on the same conditions as coverage would have been provided if the employee had been continuously employed during the entire leave period. All employers covered by FMLA, including public agencies, are subject to the Act’s requirements to maintain health coverage. The definition of group health plan is set forth in §825.800.

§825.210 Employee payment of group health benefit premiums.

(a) Group health plan benefits must be maintained on the same basis as coverage would have been provided if the employee had been continuously employed during the FMLA leave period. Therefore, any share of group health plan premiums which had been paid by the employee prior to FMLA leave must continue to be paid by the employee during the FMLA leave period. If premiums are raised or lowered, the employee would be required to pay the new premium rates. Maintenance of health insurance policies which are not a part of the employer’s group health plan, as described in §825.209(a), are the sole responsibility of the employee. The employee and the insurer should make necessary arrangements for payment of premiums during periods of unpaid FMLA leave.

(b) If the FMLA leave is substituted paid leave, the employee’s share of premiums must be paid by the method normally used during any paid leave, presumably as a payroll deduction.

(c) If FMLA leave is unpaid, the employer has a number of options for obtaining payment from the employee. The employer may require that payment be made to the employer or to the insurance carrier, but no additional charge may be added to the employee’s premium payment for administrative expenses. The employer may require employees to pay their share of premium payments in any of the following ways:

(1) Payment would be due at the same time as it would be made if by payroll deduction;

(2) Payment would be due on the same schedule as payments are made under COBRA;

(3) Payment would be prepaid pursuant to a cafeteria plan at the employee’s option;

(4) The employer’s existing rules for payment by employees on leave without pay would be followed, provided that such rules do not require prepayment (i.e., prior to the commencement of the leave) of the premiums that will become due during a period of unpaid FMLA leave or payment of higher premiums than if the employee had continued to work instead of taking leave; or,

(5) Another system voluntarily agreed to between the employer and the employee, which may include prepayment of premiums (e.g., through increased payroll deductions when the need for the FMLA leave is foreseeable).

(d) The employer must provide the employee with advance written notice of the terms and conditions under which these payments must be made. See §825.300(c).

(e) An employer may not require more of an employee using unpaid FMLA leave than the employer requires of other employees on leave without pay.

(f) An employee who is receiving payments as a result of a workers’ compensation injury must make arrangements with the employer for payment of group health plan benefits when simultaneously taking FMLA leave. See §825.207(e).

http://www.ecfr.gov/cgi-bin/text-idx?c=ecfr&sid=d178a2522c85f1f401ed3f3740984fed&rgn=div5&view=text&node=29:3.1.1.3.54&idno=29#sp29.3.825.a

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Beth February 10, 2016 at 3:31 pm

Benefit World- all that you stated is true except “the
employer may require the employee to repay the employer’s share of the premium payment if the
employee fails to return to work following the FMLA leave unless the employee does not return because
of circumstances that are beyond the employee’s control, including a FMLA-qualifying medical
condition.” This is the part I was referring to.

http://www.dol.gov/whd/regs/compliance/whdfs28a.pdf

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Cathy February 1, 2016 at 4:36 pm

Our FMLA says you cannot perform work for another employer while on the leave. Possibly the wording is confusing for her.

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louise February 1, 2016 at 5:30 pm

I’m curious – “Can they take my pay back?” Does this mean this particular company pays someone their salary while on FMLA? If so, I could see how that factors in–basically, you’re getting paid over your FMLA leave, so you should only be focusing on getting better, not on leaving. But it doesn’t truly hold water since you’re allowed to job hunt while employed. I’m curious about more of the details and what an employment law attorney would say.

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Jill S February 2, 2016 at 5:11 pm

The employer is a different hospital. I am keeping my insurance premiums paid.

I am using PTO and sick leave hours I have accumulated in my sick time bank.

I was concerned about the paying the insurance company back. I be leave that has been answered.

My plan is to return back to work to give my two weeks notice, if I am offered the job. The new place will be notified of my time off and make their decision. My start time would have to be after i am of FMLA. I would not work in another job, until I am cleared by my doctor. That would not be right.

I just do not want to end up going back to a night shift job, because I was off work for too long. I am trying to cover my ***.
.

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Laura K. February 1, 2016 at 6:06 pm

FMLA and compensation are very different issues. They need to clarify their situation. I work as a contractor – we have no disability benefits or paid FMLA. They employ a 3rd party to handle their FMLA requests. I just took FMLA to cover my job status while on maternity leave. I used a week of accrued PTO to cover one week, so that I would have at least one week of pay. The FMLA handlers were VERY clear that I could not overlap paid time off and FMLA. I had to take the week of PTO before reporting that my FMLA needed to start. Why? Because you can take PTO for any reason – childbirth, skiing, hot air ballooning – but it could not overlap with the much more specific parameters of the unpaid FMLA leave.

I explain this because they said they asked if their pay would get taken back. Are they sure they’re on FMLA or is this term getting used loosely? Or are they actually using disability coverage provided by their company? Or if their company ELECTED to pay them on FMLA, that’s incredible, and I’m sure there would be a consequence to violating it. If the company was electing to pay, I guess they can add any wording they want. It’s a hard position to be in, but if they had taken unpaid FMLA, I think they would be able to job search.

(Not a lawyer)

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Danna Blum February 3, 2016 at 12:16 am

Yes, under certain circumstances, an employer may recover the premiums paid for health insurance for an employee not returning from FMLA leave. Excerpted from the DOL website:

https://webapps.dol.gov/elaws/whd/fmla/8d4.aspx

“Under certain circumstances, the employer may recover its share of health plan premiums paid during the period of unpaid FMLA leave from an employee. The employer may recover its share of health plan premiums if the employee fails to return to work after his or her unpaid FMLA leave entitlement has been exhausted or expires, unless the reason the employee does not return is due to:

•Circumstances beyond the employee’s control; or
•The continuation, recurrence or onset of a serious health condition of the employee or the employee’s family member, or a serious injury or illness of a covered servicemember, that would otherwise entitle the employee to leave under FMLA. ”

The citation also states that if the FMLA leave is paid (either through use of paid leave, or disability insurance plan, or workers’ comp, the employer may not recover the premiums.

Concerning “returning to work”, the DOL defines this as returning for a period of at least 30 days.

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Anon February 3, 2016 at 7:22 pm

I’d be more concerned about the “no restrictions” clause. The EEOC does not like that wording. http://www.fmlainsights.com/requiring-an-employee-to-return-from-fmla-leave-without-restrictions-or-fully-healed-is-playing-with-fire/

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