--- title: "Employees Working While on FMLA: Advice for Employers" description: Explore expert tips on managing employees working while on FMLA. 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- - - [whatsapp://send?text=https://blog.axcethr.com/employees-working-while-on-fmla-advice-for-employers](whatsapp://send?text=https://blog.axcethr.com/employees-working-while-on-fmla-advice-for-employers) - [mailto:?subject=Employees%20Working%20While%20on%20FMLA:%20Advice%20for%20Employers&body=https://blog.axcethr.com/employees-working-while-on-fmla-advice-for-employers](mailto:?subject=Employees%20Working%20While%20on%20FMLA:%20Advice%20for%20Employers&body=https://blog.axcethr.com/employees-working-while-on-fmla-advice-for-employers) ![working-while-on-FMLA (1)](https://blog.axcethr.com/hs-fs/hubfs/working-while-on-FMLA%20(1).webp?width=1200&height=800&name=working-while-on-FMLA%20(1).webp) 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. RELATED: [Understanding Today’s Paid Sick Leave Laws >>](https://blog.axcethr.com/understanding-todays-paid-sick-leave-laws)   ## 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.  [![FMLA Leave for Mental Health Conditions](https://no-cache.hubspot.com/cta/default/2652187/0db16ae4-de1c-48c7-84b7-2d06e75e2ff3.png)](https://cta-redirect.hubspot.com/cta/redirect/2652187/0db16ae4-de1c-48c7-84b7-2d06e75e2ff3) ## 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.  RELATED: [Empowering Your Team - Employer Guide to Short-Term Disability & FMLA >>](https://blog.axcethr.com/what-is-the-difference-between-short-term-disability-fmla-leave)  ## 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.  [![Natural Disasters and Family and Medical Leave Act Leave](https://no-cache.hubspot.com/cta/default/2652187/38136951-470e-4441-a588-d78c72c1ed53.png)](https://cta-redirect.hubspot.com/cta/redirect/2652187/38136951-470e-4441-a588-d78c72c1ed53) ## 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](https://www.axcethr.com/services/human-resources/hr-compliance-specialist/) 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.  **RELATED: **[Mastering Intermittent FMLA in Your Business >>](https://blog.axcethr.com/intermittent-fmla-explained) ## 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](https://blog.axcethr.com/certified-peos-what-are-they-and-why-does-certification-mattereo) (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](https://www.axcethr.com/schedule-consultation/).  [![Employee Relations](https://no-cache.hubspot.com/cta/default/2652187/0eeaef73-dcb0-4697-a04f-6d3b530fe898.png)](https://cta-redirect.hubspot.com/cta/redirect/2652187/0eeaef73-dcb0-4697-a04f-6d3b530fe898) [![Jeanette Coleman, SPHR & SHRM-SCP](https://blog.axcethr.com/hs-fs/hubfs/Jeanette-04.jpg?width=80&height=80&name=Jeanette-04.jpg)](https://blog.axcethr.com/author/jeanette-coleman) Written by #### [Jeanette Coleman, SPHR & SHRM-SCP](https://blog.axcethr.com/author/jeanette-coleman) Jeanette Coleman, SPHR, SHRM-SCP, is the Director of Human Resources at Axcet HR Solutions, where she has contributed her expertise for over 21 years. As a leader in the HR industry, she holds advanced certifications as a Senior Professional in Human Resources (SPHR) and SHRM-Senior Certified Professional (SHRM-SCP). Jeanette oversees HR strategy and operations, ensuring Axcet delivers exceptional HR services that help small and mid-sized businesses stay compliant and grow. With a Master’s degree in Human Resource Management from Keller Graduate School and a Bachelor of Science in Business Administration from Kansas State University, Jeanette is well-equipped to lead and support clients in navigating complex HR challenges. Throughout her 15-year tenure as Director of Human Resources, she has been instrumental in positioning Axcet as the Midwest’s largest and premier Professional Employer Organization (PEO). Her previous roles at Axcet include Director of Employee Benefits and Senior HR Consultant, where she gained extensive experience in HR outsourcing, and employee risk management. Jeanette’s expertise has been recognized through industry and regional publications. She co-authored the article “High-Touch in the Age of High-Tech: How PEOs Can Embrace AI Without Losing Their Humanity” (https://peoinsider.org/articles/high-touch-in-the-age-of-high-tech-how-peos-can-embrace-ai-without-losing-their-humanity/) for PEO Insider (March 2026), alongside Jo McClure, and was featured in Ingram’s Magazine in a Q&A (https://ingrams.com/article/qa-with-jeanette-coleman/) discussing generational change, technology, and workplace culture. These contributions reflect her perspective on balancing innovation with the human side of HR. Jeanette’s leadership reflects her deep commitment to helping businesses thrive through strategic, compliance-driven HR solutions. Through her writing, she shares insights on HR strategy, compliance, and best practices to help employers confidently manage their workforce. Published in: PEO Insider and Ingram's Read more [View all posts →](https://blog.axcethr.com/author/jeanette-coleman) ### Get HR Updates ### Table of Contents ### Related Resources - [services Human Resources](https://www.axcethr.com/services/human-resources/) - [services HR Compliance](https://www.axcethr.com/services/human-resources/hr-compliance-specialist/) #### [The Psychology Behind Effective Interview Questions ![effective interview questions](https://blog.axcethr.com/hubfs/effective-interview-questions-_1200-x-628-px_%20(1).webp)](https://blog.axcethr.com/effective-interview-questions-unlocking-candidate-motives) #### [![OSHA safety training requirements](https://blog.axcethr.com/hubfs/OSHA-safety-training-requirements-_1200-x-628-px_%20(3).webp) Unlocking Compliance: Mastering OSHA Safety Training Requirements](https://blog.axcethr.com/osha-safety-training-requirements-a-small-business-guide) ## Let us know what you think... ![AxcetHR Blog](https://blog.axcethr.com/hubfs/AxcetHR2021%20Blog/axcethr_logo_white%20(1).png) - [Why Axcet](https://www.axcethr.com/why-axcet/) - [What We Stand For](https://www.axcethr.com/about-us/what-we-stand-for/) - [Expertise](https://www.axcethr.com/expertise/) - [Employee Benefits](https://www.axcethr.com/services/employee-benefits/) - [Human Resources](https://www.axcethr.com/services/human-resources/) - [Payroll Services](https://www.axcethr.com/services/payroll-and-tax-administration-services/) - [Risk Management](https://www.axcethr.com/services/workers-comp-and-employee-safety-risk-management/) - [Meet the Team](https://www.axcethr.com/about-us/meet-the-team/) - [Subscribe to Latest Resources](https://www.axcethr.com/subscribe-to-the-latest-resources/) - [Resource Library](https://www.axcethr.com/expertise/resource-library/) - [\[ Client Portal \]](https://www.axcethr.com/client-services/) - - - - - Search for: Copyright © 2023 Axcet HR Solutions – Kansas City's PEO Since 1988 | [Privacy Policy](https://www.axcethr.com/privacy-policy/) | [Terms and Conditions](https://www.axcethr.com/terms-conditions/) | [**Join our Team – Careers »**](https://axcethrsolutions.prismhr-hire.com/) 10975 Grandview Drive Suite 200, Corporate Woods Building 27, Overland Park, KS 66210 | Call us: 913-383-2999 *The IRS does not endorse any particular For more information on [certified professional employer organizations](https://www.axcethr.com/why-axcet/certified-peo/), go to [www.irs.gov](https://www.irs.gov).* Remove cookies ![](https://dc.ads.linkedin.com/collect/?pid=43031&fmt=gif) ```json { "@context" : "https://schema.org", "@type" : "BlogPosting", "author" : { "@type" : "Person", "name" : "Jeanette Coleman, SPHR & SHRM-SCP", "url" : "https://blog.axcethr.com/author/jeanette-coleman" }, "dateModified" : "2024-08-16T16:38:19.707Z", "datePublished" : "2024-04-04T19:17:21.000Z", "headline" : "Employees Working While on FMLA: Advice for Employers", "image" : [ "https://blog.axcethr.com/hubfs/working-while-on-FMLA-_1200-x-628-px_%20(1).webp" ], "mainEntityOfPage" : { "@id" : "https://blog.axcethr.com/employees-working-while-on-fmla-advice-for-employers", "@type" : "WebPage" }, "publisher" : { "@type" : "Organization", "logo" : { "@type" : "ImageObject", "url" : "https://blog.axcethr.com/hubfs/_logo_axcethr_primary.png" }, "name" : "Axcet HR Solutions" } } ``` ```json { "@context" : "https://schema.org", "@id" : "https://www.axcethr.com/#organization", "@type" : "Organization", "address" : { "@type" : "PostalAddress", "addressCountry" : "US", "addressLocality" : "Kansas City", "addressRegion" : "MO" }, "aggregateRating" : { "@type" : "AggregateRating", "bestRating" : "5", "ratingValue" : "5", "reviewCount" : "100" }, "areaServed" : { "@type" : "Country", "name" : "United States" }, "award" : [ "IRS Certified Professional Employer Organization (CPEO)", "Award-Winning HR Solutions Provider", "SHRM Certified HR Professionals", "HRCI Certified HR Professionals" ], "contactPoint" : { "@type" : "ContactPoint", "areaServed" : "US", "availableLanguage" : "English", "contactType" : "Customer Service" }, "description" : "Award-winning Professional Employer Organization (PEO) providing comprehensive HR solutions, payroll services, employee benefits, and risk management to small and mid-sized businesses. 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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. RELATED: Understanding Today’s Paid Sick Leave Laws >> 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. RELATED: Empowering Your Team - Employer Guide to Short-Term Disability & FMLA >> 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. RELATED: Mastering Intermittent FMLA in Your Business >> 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.", "author" : { "@id" : "https://blog.axcethr.com/author/jeanette-coleman#author", "@type" : "Person", "name" : "Jeanette Coleman, SPHR & SHRM-SCP", "url" : "https://blog.axcethr.com/author/jeanette-coleman" }, "dateCreated" : "2024-04-04", "dateModified" : "2024-08-16", "datePublished" : "2024-04-04", "description" : "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. 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