FMLA Leave and Moonlighting – To Terminate Or Not To Terminate?!

06Oct14

doctor and patient (1)If an employee takes FMLA leave due to a serious health condition which makes it unable for them to perform the job duties they were hired to do, is it really alright for them to continue working at a different job?

The answer is YES – unless your organization specifically prohibits it. So your ability to take disciplinary action – including termination – will depend upon the precise detail of whether or not there is a policy in place that states outside employment is not allowed and that it is applied consistently for anyone who may be on a leave of absence.

If you have a policy or plan of action specifically prohibiting employees from working a second job while on Family and Medical Leave Act (FMLA) leave, you may enforce that policy for a moonlighting employee. However, if you do not address this issue in your policies and the employee has met the FMLA criteria for leave, you should allow them to continue to take the leave and work the second job, if medically able to do so.

The FMLA does not prohibit an employee from working a second job and taking FMLA leave in a first job, as long as the employee meets the FMLA standard for leave from their job. For example, if they are eligible for FMLA leave and have provided the required medical certification to show they have a legitimate health condition.

It is pretty cut and dry – If you want to prohibit an employee from working a second job and tighten up your FMLA compliance, it is critical that you maintain a uniformly-applied no-moonlighting policy that prohibits work while on FMLA leave and any other form of leave. Additionally, the policy should be distributed and available to all employees, and they should be reminded of it when leave begins.

If you do learn that an employee is working another job while on FMLA leave you should follow a few guidelines by confirming the facts first and determining the duties of the other job with any medical restrictions as outlined on the medical certification form, particularly if you do not have a no-moonlighting policy. Investigate the relationship between the two jobs. Then you should confront the employee to let them know you are aware of the second job and reiterating with them their acknowledgement of their agreement in your company’s moonlighting restriction policies. You may want to be sure and investigate fully and consider discussing it with one of your peers or favorite employment attorney prior to taking action.

A company would be amiss if they did not institute and enforce such a policy prior to hiring and it is highly recommended if you do not have a policy in place to do so before your next hire. Here is an example of a LOA Policy using the following language: “Employees who are on an approved leave of absence may not engage in any form of self-employment or perform work for any other employer during that leave, except when the leave is for military or public service or when the employment has been approved by the company under its Outside Employment policy and the employee’s reason for leave does not preclude the outside employment.

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