If you are a department head, supervisor or human resources professional, you may have experienced this situation at one time or another: one of your employees has been working a second job while on Family and Medical Leave Act (FMLA) leave. How could the employee be well enough to work this second job but be so incapacitated that they could not work their job for you? You may have wondered, “Is this FMLA fraud?”

When an employee is on FMLA leave for their own serious health condition (see here), continuing to work a second job is not necessarily evidence of FMLA fraud. The second job may not involve the same kinds of duties as the job the employee performs for you, and the employee’s condition may not keep them from performing the second job’s duties. Even so, the idea of an employee working a second job while on FMLA leave from yours may not sit well. Employers have a remedy in this situation. The FMLA regulations allow employers to restrict the work activities of employees on FMLA leave provided they abide by one simple rule.

Working a Second Job While on FMLA Leave: 29 CFR § 825.216(e)

The FMLA regulations allow employers to restrict outside or supplemental employment while an employee is on FMLA leave if the employer has a uniformly-applied, written policy that prohibits it. Policies should include a provision that violating the policy may result in immediate termination of both the leave of absence (including FMLA leave) and employment.

Without such a formal, written policy, employers may not discipline or discharge an employee simply because they are working a second job (unless the employee is performing duties that the FMLA certification says they cannot do, in which case FMLA fraud may be an issue; see below).

May the Policy Prohibit Outside Employment Only During FMLA Leave?

This is an important, but unanswered question. 29 CFR § 825.216(e) says only that a policy prohibiting secondary employment must be “uniformly-applied.” In its commentary to the regulations, the U.S. Department of Labor said:

whether an employee may engage in outside employment during FMLA leave is dependent upon the employer’s established policy regarding outside employment. For example, the employer may require that all outside employment be pre-approved by the employer. If so, employment while on FMLA leave would be subject to this policy.

This language, coupled with the FMLA’s overarching philosophy that employees on FMLA leave be treated in the same way as employees who are not on FMLA leave, strongly implies that a prohibition on outside employment be applicable to all employees or to all employees on a leave of absence of any kind, not just to employees on FMLA leave.

There are no cases that directly address this issue. A cautious employer will therefore not limit a ban on outside employment only to those employees on FMLA leave.

What to Do About Employees Who Work a Second Job

Employer with a Proper Policy Prohibiting Employees on Leave from Working a Second Job

In this situation, an employee who continues to moonlight while on FMLA leave violates their employer’s legitimate, uniformly-applied policy and is therefore engaging in misconduct. The employee may be disciplined, up to and including being dismissed, even though they are on FMLA leave since FMLA leave does not protect an employee whose actions would have led to discipline or dismissal had they not been on FMLA leave. See here.

Employer without a Policy Prohibiting Employees on Leave from Working a Second Job

Where an employer has not prohibited secondary employment, it must first decide whether it wants to do anything about an employee who is working a second job while on FMLA leave. If so, the employer should ask the employee to provide a job description for the second job, preferably a job description that has been prepared by the second employer. If the job duties for the second job are compatible with the medical condition for which the employee is taking leave, the matter should end there. FMLA leave may not be rescinded when the second job’s duties are within the employee’s medical capabilities since the employee is not committing any kind of fraud by claiming they cannot perform their primary job’s duties.

If it is unclear or if the employer thinks that the second job’s duties are not consistent with the condition the employee claims to have, the employer should ask for a recertification of the employee’s need for FMLA leave. The regulations expressly allow an employer to seek recertification if “[t]he employer receives information that casts doubt upon the employee’s stated reason for the absence or the continuing validity of the certification.” The employer should attach both sets of job duties to the certification form and ask the health care provider to explain how the employee can perform the secondary job’s duties but not the duties required by the primary employer. If the provider satisfactorily explains how the employee is able to perform the second job, the matter should end there. If the employer still has questions, it may request a second opinion at its own expense. On certifications and second opinions, see here.