Working While on FMLA: Legal Insights and Policy Advice for Employers

The Family and Medical Leave Act (FMLA) stands as a pivotal resource for employees grappling with significant health issues or the necessity of caring for a loved one. Yet, for many employers, the protections provided by the FMLA are a double-edged sword, as they sometimes lead to cases of misuse by employees.

A particularly challenging scenario arises when an employee is found working while on FMLA leave, which can trigger legitimate concerns and warrant an investigation by the employer.

If you're an employer puzzled by the question, "Can you work another job while on FMLA?" you're not alone. This guide is tailored to address the complexities surrounding employees who may be working while on FMLA.

Let's explore five key aspects to consider if you suspect an employee is may be abusing FMLA protections by working while on FMLA.

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What Federal Law Says About Working During FMLA Leave 

Federal law (including the text of the FMLA itself) does not prohibit an employee from working a separate job during their FMLA leave. While the text of the law forbids an employer from whom the employee has taken FMLA leave to require the employee to work for them, there is no provision against employees taking secondary employment during their leave. 

We’ll discuss the details below, but it’s important to note that an employee cannot be disciplined or terminated simply because they’ve taken up secondary employment and are working while on FMLA. Instances of the employee’s breach of a valid and current restrictive covenant, FMLA fraud or other wrongdoing must exist to take any adverse action against the employee or rescind their leave. 

What Your Current Written Policy Says About Working During FMLA Leave 

While you won’t find much support in federal law for forbidding employees from taking a second job and working while on FMLA leave, you may have rules to point to within your business' policies.

If you’ve maintained a uniformly applied policy forbidding outside work, that policy can continue to apply to an employee on leave. In this instance, a uniformly applied policy refers to a policy that applies to all employees equally, whether on FMLA leave or not. 

For context, FMLA regulation 825.2169(e) reads as follows: 

“If the employer has a uniformly applied policy governing outside or supplemental employment, such a policy may continue to apply to an employee while on FMLA leave. An employer which does not have such a policy may not deny benefits to which an employee is entitled under FMLA on this basis unless the FMLA leave was fraudulently obtained as in paragraph (d) of this section.” 

You should be careful, however, to ensure that your written policy is in line with the laws of the states in which you operate or employ workers. 

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What State Law Says About Working During FMLA Leave 

As discussed above, federal law doesn’t prohibit employers from implementing an anti-moonlighting policy to keep employees from working while on FMLA leave, but state law might. If your state’s laws offer greater employee protections than those at the federal level, the state law will always “preempt” federal law and apply to your situation. 

Some states, including Washington state, Washington D.C., California, North Dakota and Oklahoma, may prohibit an employer’s enforcement of an anti-moonlighting policy completely or in certain instances. If you have an existing anti-moonlighting policy, or if you decide to implement one, it’s important to speak with experienced HR compliance experts or legal counsel to make sure your policy is compliant and up-to-date. 

The Type of Work the Employee is Engaged in Versus Their Medical Condition 

When it appears that an employee has picked up a second job and is working while on FMLA leave, employers may assume the employee is engaging in FMLA fraud. Depending on the circumstances, this may or may not be the case. It’s important to remember that simply picking up a second job and working during FMLA leave doesn’t necessarily constitute fraud. FMLA fraud is about lying to an employer to gain benefits under the FMLA. 

If your employee has given you a personal medical reason why they cannot complete their job duties at your organization but has taken another job elsewhere, this may (or may not) indicate FMLA fraud. Some employers may ask the employee to provide a job description from their secondary employer and compare the job duties listed to those the employee claims they need to forego at your company. 

Employers may ask for appropriate medical certification of an existing need before permitting an employee to take FMLA leave. In some instances, they may ask for recertification if they have a reasonable belief that an employee may be lying about the need, or in other words, committing FMLA fraud.

Before asking for recertification, it’s important to discuss your situation with an experienced HR compliance expert or legal counsel. 

How You Want These Issues to Be Handled in the Future 

Issues of suspected FMLA fraud can be incredibly frustrating to employers. Common complaints from companies include employees requesting FMLA leave after a vacation has been denied, applying for FMLA leave when they suspect they may be terminated for performance, or using FMLA to “job shop.” 

While employers have the right to raise concerns regarding FMLA fraud, they should do so carefully, and with HR compliance experts on their side. The FMLA’s provisions prohibit employers from discriminating or retaliating against employees from exercising or attempting to exercise their rights under the FMLA. While these employee protection provisions are well-intentioned, they require employers to tread carefully. 

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Implementing a Moonlighting Policy with Axcet HR Solutions

Your organization offers generous protections to its employees, but your generosity shouldn’t be abused. If you’d like to discuss the implementation of an anti-moonlighting policy at your small business, Axcet HR Solutions is here to help. We’ll help you wade through the federal, state and local policy concerns that may apply to you and consider your company’s unique culture as we help you craft your employee policies together. 

Axcet HR Solutions is a certified professional employer organization (PEO) that understands employee relations, risk management, and human resources compliance for small businesses. Policy design and implementation are just the beginning of what we can do to help you revamp your HR strategies. Schedule a consultation today to learn more.