Can You Work While on FMLA Leave From Your Job?
Explore how FMLA leave interacts with outside work, employer policies, and legal boundaries to understand your rights and responsibilities.
Taking time off under the Family and Medical Leave Act (FMLA) provides job-protected leave for eligible employees facing serious health conditions, family care needs, or certain military-related situations. With the rise of remote work and secondary employment, questions often arise about whether an employee can perform any work while on FMLA leave. Engaging in work during this period could potentially jeopardize legal protections and benefits, or lead to conflicts with an employer. Understanding the interplay between FMLA regulations and work activities is crucial.
Employer’s Right to Restrict Work
The FMLA itself does not explicitly prohibit employees from working another job while on approved leave. However, an employer may restrict such outside employment, sometimes called “moonlighting,” based on its own established policies.
Federal regulations clarify that if an employer has a standard policy regarding outside or supplemental employment that applies consistently to all employees and all types of leave, paid or unpaid, this policy can also apply to employees on FMLA leave.1U.S. Department of Labor. DOL Opinion Letter FMLA-106: Outside Employment An employee on FMLA leave remains employed and subject to the employer’s standard conduct rules. If a company generally forbids employees on any leave of absence from working elsewhere, it can enforce this rule for someone on FMLA leave.
The key is uniform application. An employer cannot create a special rule against outside work solely for those on FMLA leave or enforce an existing policy more strictly against them compared to employees on similar types of non-FMLA leave. If employees on personal leave are permitted to hold second jobs, those on FMLA leave generally cannot be prohibited from doing the same, unless the nature of the outside work contradicts the reason for the FMLA leave.
In the absence of a uniformly applied policy restricting outside employment, an employer generally cannot prevent an employee on FMLA leave from working a second job or engaging in self-employment. Taking disciplinary action against an employee for working elsewhere without such a policy would likely violate the FMLA, unless the employer can demonstrate the leave itself was misused. Therefore, a clear, consistently enforced company policy is the primary factor determining whether an employer can limit work during FMLA leave.
Partial or Intermittent Schedules
The FMLA allows leave to be taken not just in a single block, but also through intermittent leave or a reduced schedule. These arrangements inherently involve periods of work mixed with periods of FMLA leave. Federal regulations permit intermittent leave—taking leave in separate blocks of time for a single qualifying reason—and reduced schedule leave, which involves decreasing the usual number of work hours per day or week.2eCFR. 29 CFR 825.202 — Intermittent Leave or Reduced Leave Schedule
These schedules are allowed when medically necessary for an employee’s own serious health condition, or to care for a family member or covered service member. A healthcare provider’s certification typically establishes this need. Under these arrangements, working during scheduled hours that fall outside the designated FMLA leave periods is expected. For example, an employee approved for a reduced schedule working four hours daily instead of eight is expected to work those four hours, with the remaining time counted as FMLA leave.
If the need for intermittent or reduced schedule leave is foreseeable due to planned medical treatment, federal rules allow an employer to temporarily transfer the employee to an available alternative position.3eCFR. 29 CFR 825.204 — Transfer of an Employee to an Alternative Position During Intermittent Leave or Reduced Schedule Leave This position must offer equivalent pay and benefits, though the duties might differ. The transfer’s purpose must be to better accommodate the recurring leave and cannot be used punitively. Once the need for the modified schedule ends, the employee must be restored to their original job or an equivalent one.
Reporting and Recording Requirements
Both employees and employers have specific responsibilities for reporting and record-keeping under the FMLA. Employees must follow their employer’s standard procedures for requesting time off. For foreseeable leave, like a planned surgery, employees should provide at least 30 days’ advance notice if possible. If the need for leave is sudden or unforeseeable, notice must be given as soon as practical, usually within one or two business days. While employees don’t have to use the term “FMLA,” they must provide enough information for the employer to recognize the leave might qualify under the act.
Once notified, employers must maintain detailed records related to FMLA for at least three years, as required by federal regulations.4eCFR. 29 CFR 825.500 — Recordkeeping Requirements While no specific format is mandated, these records must include basic employee data, dates FMLA leave is taken (clearly marked as such), and the hours of leave taken if less than a full day.
Employers must also keep copies of employee leave requests (if written), all FMLA notices provided to employees, documents detailing benefit policies, records of benefit premium payments during leave, and records of any FMLA-related disputes. Medical certifications and related health information must be kept confidential and stored separately from general personnel files, consistent with laws like the Americans with Disabilities Act (ADA). These requirements ensure proper tracking and compliance.
Violations and Enforcement Issues
FMLA violations related to working during leave can involve either the employer or the employee. Employers are prohibited from interfering with an employee’s FMLA rights, which includes denying valid leave or retaliating against someone for taking it.5U.S. Department of Labor. Fact Sheet #77B: Protection for Individuals Under the FMLA An employer generally cannot discipline an employee for working a second job during FMLA leave unless it has a uniformly applied policy against outside employment during any type of leave, as permitted by federal regulations. Applying such a policy consistently is allowed; however, penalizing an employee for working during FMLA leave without such a policy could be unlawful interference or retaliation.
Employees may face issues if their work activities suggest fraudulent use of FMLA leave. While working another job isn’t automatically forbidden by the FMLA, it could raise questions if the work seems incompatible with the stated reason for leave. For instance, if an employee takes FMLA leave certified as requiring rest but is found doing strenuous work elsewhere, the employer might investigate potential FMLA misuse. If misuse is confirmed, the employee could lose FMLA protections, including job restoration, and face disciplinary action based on company policies regarding dishonesty or fraud.6Legal Information Institute (Cornell Law School). 29 CFR § 825.216 – Limitations on an Employee’s Right to Reinstatement
The U.S. Department of Labor’s Wage and Hour Division (WHD) enforces FMLA provisions. The WHD investigates employee complaints about potential violations, such as retaliation related to working during leave. If a violation is found, the WHD can seek remedies like back pay or reinstatement. Employees also have the right under federal law to file a private lawsuit against an employer for FMLA violations. The legitimacy of the leave reason and the consistent application of company policies are key factors in determining if working during FMLA constitutes a violation.
Resolving Disputes and Seeking Help
Disagreements can arise over an employee working while on FMLA leave, perhaps regarding company policy or whether the work contradicts the leave’s purpose. Direct communication between the employee and employer is often the first step. Discussing the situation, reviewing policies, and clarifying the work involved may resolve the issue. Documenting these conversations is recommended. Some workplaces offer internal grievance procedures for addressing FMLA disputes.
If internal talks fail, external help is available. Mediation, where a neutral third party helps facilitate a resolution, can be an option. This process is typically confidential and less formal than legal action.
Employees who believe their FMLA rights have been violated concerning work during leave can contact the U.S. Department of Labor’s Wage and Hour Division (WHD), the agency responsible for FMLA enforcement. Complaints can be filed with the WHD, providing details about the employer, the job, the FMLA leave, and the work performed.7U.S. Department of Labor. How to File a Complaint The WHD keeps the complainant’s identity confidential unless disclosure is necessary for the investigation or required by law. The agency may investigate by reviewing records and conducting interviews to determine if a violation occurred and may help facilitate a resolution.
If administrative routes do not resolve the dispute, the FMLA allows employees to file a civil lawsuit against their employer in federal or state court.8U.S. Department of Labor. FMLA Advisor: Enforcement Generally, a lawsuit must be filed within two years of the alleged violation, or three years if the violation was willful. Seeking legal counsel is typically necessary when pursuing litigation.
