Working Another Job While on FMLA Leave is Not Necessarily Misconduct

Imagine this.  You have an employee who is on leave pursuant to the Family and Medical Leave Act (FMLA) and you discover that the employee is working for another employer.  Does the law permit you to take disciplinary action against that employee?  

Common sense might suggest that if someone is unable to work for your organization due to an FMLA-qualifying reason, it should prevent the employee from working for any other employer.  However, the FMLA regulations do not necessarily adhere to this common sense logic. Specifically, the FMLA regulations provide that:

“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 ….” (29 CFR § 825.216(e).)  

This means that discovering that an employee on FMLA leave is working for another employer does not automatically prove that the employee obtained the leave under false pretenses.  It is possible, for example, that the employee could be unable to perform the physical tasks of his/her job with your organization but could perform less demanding physical tasks of a different job.  In such a situation, youwould have to find other evidence that the leave was not necessitated by an FMLA-qualifying reason to prove that the employee obtained it fraudulently.  

That said, if your organization has a policy prohibiting supplemental employment or “moonlighting”, it would not violate the FMLA to discipline an employee who is working at another job while on FMLA leave. As noted in the above-quoted passage, the policy must be “uniformly-applied”.  Stated differently, an employer could not have a policy that simply prohibits moonlighting by employees on FMLA leave.   It would have to apply to all employees.  Moreover, an employer could not single out employees on FMLA leave for disciplinary action under such a policy (i.e., selective enforcement of the policy).  All employees who violate the anti-moonlighting policy would have to be treated the same, regardless of their FMLA leave status.