Moonlighting On FMLA Leave

February 19, 2018

The Family and Medical Leave Act (FMLA) does not prohibit outside employment by an employee on FMLA leave, unless the employer has a uniformly-applied policy governing outside employment while on periods of leave.

Even if an employer has a policy prohibiting outside work, however, it still would not have grounds to request that the employee return to work from FMLA leave; instead, it would have grounds to discipline the employee for violating the prohibition on outside employment, just as it would any other employee who was non-FMLA leave. Employees on FMLA leave are to be treated consistently with other employees on other forms of paid or unpaid leave.

An employer may be concerned, however, that the employee is fraudulently claiming FMLA leave. An employer that does not have a policy against outside employment while on leave may not deny an employee benefits under the FMLA unless the employee fraudulently obtained the FMLA leave. Thus, if employers have an honest, good-faith belief that an employee is abusing FMLA leave, they have the right to investigate that belief and take appropriate disciplinary action if the employee is, in fact, abusing the leave.

In Texas, a federal court granted judgment for an employer after it fired an employee who was on FMLA leave, supposedly for her own serious health condition, but was spotted attending a Beyoncé concert. It is important to note that, even with such egregious evidence, the employer did not immediately fire the employee. Instead, the employer asked the employee to contact the Human Resources Director to explain how she could attend a Beyoncé concert while on FMLA leave. When the employee failed to respond, the employer discharged her for not only attending the concert while on leave, but also for refusing to communicate with the employer when requested. The court noted that the employer suspected the employee was committing fraud by claiming a benefit to which she was not entitled; the employer attempted to investigate, but the employee refused to cooperate. Keep in mind that it is possible that an employee may be able to work at a different job (or attend a Beyoncé concert) even if she has a condition that prevents her from working for her employer.