Dive Brief:
- Can an employer legally prohibit an employee from seeking other employment while on leave under the Family and Medical Leave Act (FMLA)? It all depends, according to some HR and employment law experts, but even it is legal, it's not a very good idea for HR leaders.
- According to one expert, if an employer has created a universal policy which precludes any employee on any form of leave (e.g., FMLA, vacation, sick, PTO, jury duty, bereavement, etc.) from job hunting, then it’s probably lawful.
- Singling out FMLA leave is likely a violation of FMLA rights, another expert notes. But either way, most experts agree that even policies that prohibit job searching on all types of leave are not good policies to have.
Dive Insight:
One legal expert, John Hyman, notes that while FMLA leave itself doesn’t prohibit someone from job hunting, the legal answer to this question depends on whether this policy applies to any employee who is on a leave of absence, or only employees on FMLA leave. If it’s the latter, then the policy singles out employees taking FMLA and probably interferes with their FMLA rights. If it’s the former, then it’s probably not illegal under the FMLA – it’s just a bad policy.
Another expert, Eric Meyer, notes that employers cannot use the taking of FMLA leave as a negative factor in employment actions, such as hiring, promotions or disciplinary actions. That’s called FMLA retaliation, he notes. Also, an employer is prohibited from interfering with, restraining, or denying the exercise of (or attempts to exercise) any rights provided by the FMLA, which is called FMLA interference. Either situation is not good.
Bottom line, the legal experts agree that employers probably should stay far away from creating or enforcing a policy that punishes an employee on FMLA leave for looking into a new job.
