Can an Employee Work Another Job While on FMLA Leave?

FMLA regulations. The FMLA does not prohibit an employee from working another job while on FMLA leave. However, FMLA regulation 825.216(e) states: "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."

State law. While the FMLA may permit no-moonlighting policies/clauses, some state laws effectively prohibit the application of no-moonlighting policies by making it unlawful for an employer to inhibit an employee's lawful off-duty conduct. As with any policy, an employer should seek advice of legal counsel on its policy prohibiting secondary employment.

Employer policy. If an employer has a uniformly applied policy prohibiting secondary employment or a clause prohibiting such conduct in its FMLA policy, then the policy may be applied to an employee on FMLA leave as long as the employer does not treat the employee on FMLA leave differently than those who are on an equivalent leave status for a non-FMLA-qualifying reason. If an employer with a policy prohibiting outside employment learns that an employee is working another job while on FMLA leave, it should confirm the fact, inform the employee that it is aware of the other job and obtain the employee's acknowledgement that his or her working violates company policy. 

For moonlighting policies that allow outside work that meets policy restrictions, the employer could also try to learn the duties of the other job and compare them with the employee's current one and with any medical information or restrictions in the employee's FMLA medical certification form. If an employee on FMLA leave is found to be moonlighting against company policy, disciplinary action would ordinarily be considered. However, taking disciplinary action against an employee on FMLA leave is a significant decision that should be undertaken only after conferring with legal counsel.

When there is no specific policy in place on outside employment while on FMLA leave, an employee on approved FMLA leave may have secondary employment and even work in a similar environment to his or her current position if the employer has no general policy of prohibiting outside employment for all employees. This practice is consistent with treating employees on FMLA leave in the same manner as employees on other forms of paid or unpaid leave are treated. If an employer does not have a policy that addresses employees working another job while on FMLA leave, it might consider adding reference to this in its FMLA policy or adopting a separate policy.