Employee on FMLA leave can hold second job, if company policy does not forbid

Q: An employee on an approved medical leave under the Family and Medical Leave Act of 1993 (FMLA) for a serious health condition was seen working a second job. Can an employee moonlight while he is on leave under FMLA? Can I terminate the employee?

A: While this may take you by surprise, an employee can possibly work a second job while exercising his rights under FMLA. The FMLA has no provision prohibiting an employee from working another job while on leave from your workplace. However, this too depends on whether your organization has an established policy that would forbid employees from working secondary jobs. When there is no policy in place, an employee on an approved FMLA leave can have secondary employment and even work in a similar environment to his current position.

For example, an employee who requests FMLA for stress directly related to his current position at your organization could have or seek employment at another employer performing the same type of work. While the employee may experience stress in one particular work situation or environment, it does not necessarily mean that the employee is unable to perform his regular daily activities at another employer’s workplace.

Applying consistent policy is the best business practice to minimize risk attached to an established secondary employment policy. According to the FMLA regulations, “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.” Remember to treat employees on FMLA leave the same as you would employees on other forms of paid or unpaid leave. After conferring with your legal counsel, termination could be considered, in this instance, if the employee is not in compliance with established policy.

If you do not have a policy in reference to secondary employment, you might consider implementing such a policy. Make sure that legal counsel reviews it. Having such a policy in place would essentially protect your own business interest.

To minimize risk of wrongful termination, employers should consider a policy restricting employees’ lawful outside activities. Some states have statutes that protect lawful activities both outside the workplace and during nonworking hours; check with your legal counsel to ensure compliance with state law.

Please Note: This material is provided as general information and is not a substitute for legal or other professional advice. National members may reach the Information Center by calling (800) 283-7476 and choosing option #5 or by using the Information Center’s Assistance Request Form found under HR Resources on SHRM Online.

Dyane Holt, SPHR, is an Information Specialist in SHRM’s Information Center.