Your manager sees you at the mall while you are on FMLA. Now what?
This is Part 2 of my FMLA series. In Part 1, I covered whether your manager can know your diagnosis. Now I want to talk about what happens when someone sees you out in public while you are on leave.
Seeing you at the mall does not prove you are misusing your leave.
FMLA does not mean you stay home
FMLA gives eligible employees unpaid, job-protected leave for specific family and medical reasons. It does not say you have to stay inside your house.
A person on leave may have good reasons to be out in public. Here are three common ones.
You may be on intermittent leave. You might be out only on certain days or for certain hours. Leave can be taken in separate blocks of time when it is medically necessary, such as for treatment or recovery.
You may be on a reduced schedule. An employee recovering from a serious health condition may not be strong enough to work a full schedule. That person might work part of the day and run errands later.
You may be caring for a family member. Picking up a prescription, buying supplies, or running errands for a parent can all be part of the care.
A manager who sees an employee at the mall knows what they saw. They do not know the reason for the leave, the restrictions, or the schedule.
What managers should do
If you are a manager and you see an employee on leave, slow down.
Do not jump to conclusions. You do not have the full picture. HR does.
Do not confront the employee. A comment in the aisle or a text asking what they are doing can create a problem you did not have before.
Take what you saw to HR. Share the facts only. Say where you saw the person and when. Leave out guesses about what it means.
Let HR review it. HR can compare what you saw against the approved reason for leave, the certification, and the leave schedule.
Do not use the leave against the employee. Employers cannot use the taking of FMLA leave as a negative factor in employment actions, such as hiring, promotions, or disciplinary actions.
What employees need to know
FMLA protects you when you use it for the reason it was approved. That is the key.
An employee who fraudulently obtains FMLA leave is not protected by FMLA's job restoration or health benefit provisions. Fraud is the line, and a trip to the mall does not cross it.
Outside work is a separate issue. If your employer has a uniformly applied policy on outside or supplemental employment, that policy can still apply while you are on FMLA leave. Check your employee handbook.
A trip or vacation works the same way. The question is whether the activity fits the reason for your leave. Flying to care for a parent fits. Heavy lifting while you are out for a back injury raises questions.
If someone asks you about it
Stay calm. A question is not an accusation.
Be honest. Tell HR what you were doing and why.
Let HR walk through your leave. Ask them to confirm what your approved leave covers, including any schedule or restrictions.
Keep your paperwork handy. Your approval notice and your provider's certification show what you were approved to do.
Does FMLA apply to you?
FMLA does not cover everyone. It depends on your employer and on you.
Private-sector employers are covered if they have 50 or more employees for at least 20 workweeks in the current or previous calendar year. Government agencies and schools are covered no matter how many employees they have.
You are eligible if you have worked for your employer for at least 12 months.
You also need at least 1,250 hours of service in the 12 months before your leave starts.
And you need to work at a location where your employer has at least 50 employees within 75 miles.
Some states go above and beyond the federal rule, so check what your state says about leave.
This post is general information, not legal advice. For your situation, talk to your HR team, your state labor department, or an employment attorney.
Sources: 29 CFR 825.216, 29 CFR 825.202, 29 CFR 825.220, and the DOL FMLA Advisor.
Business owners, do your managers know what to do when they see an employee on leave?
I help small and mid-sized businesses train managers and build leave processes that protect employees and keep the company compliant. Book a free 30-minute discovery call and let's talk through your situation.
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