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Question:

Can an employee work for another employer while on FMLA?

Answer

The answer to this question depends on whether or not you have a moonlighting or outside employment policy. If you do not have a policy that specifically prohibits employees from working for other employers, then the fact that they are employed elsewhere during a leave is likely not cause for discipline. The FMLA regulations have addressed this directly, stating, “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.”

If you do not have a policy like this, we recommend you not discipline an employee for taking on other work. Courts have upheld an employee’s right to work for a second employer while on FMLA leave. An employee only has to show that they are unable to work in their current job because of a serious health condition in order to qualify for FMLA leave. This does not necessarily mean they are unable to perform other jobs. For instance, if the employee works a physically demanding job at Company A that they cannot perform due to a medical condition, they may still be able to work a desk job for Company B during leave.

If the employee’s position at Company B legitimately interferes with their position with your organization, or creates a conflict of interest, you may be able to request that the employee cease their employment with Company B. Additionally, if their position at Company B has the same physical requirements as their position at your organization, you may be looking at a case of fraudulent use of leave. In either of these situations, you should proceed with caution; disciplining an employee who is taking protected leave can easily look retaliatory.