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Q&A: Can an employee work for another employer while on FMLA?

Question:

Can an employee work for another employer while on FMLA?

Answer from Margaret, PHR, SHRM-CP:

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 a 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 the 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.

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Margaret holds a Bachelor of Arts degree in Psychology from Portland State University and a Professional Certificate in Human Resources Management. She has worked in a variety of HR roles in a multi-state capacity. Margaret regularly attends seminars and other continuing education courses to stay current with new developments and changes that affect the workplace and is active in local and national Human Resources organizations.

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