HR Hotline: Is Moonlighting While on FMLA Allowed?

Q:  One of our full-time employees is out on an extended leave of absence for stress-related mental health issues. We recently learned they working part time for a different employer while on leave.

We believe we’re being taken advantage of—may we deny the leave of absence and require that they return to work? Why should we provide job protection while they work for someone else? 

A: It can often feel disconcerting when you spend significant time and energy ensuring your compliance with the Connecticut Family and Medical Leave Act, only to discover that your employee is spending their much-needed time away working for another employer.

An employee’s ability to moonlight during FMLA leave generally depends on two factors: (1) your internal policies; and (2) how the two jobs compare. 

First, you may enforce a “no moonlighting” rule for your employees, as long as you do so uniformly. So, for example, you could have a policy that prohibits your employees from engaging in any paid outside work.

If you enforce this policy with all employees—whether they’re on an FMLA-related leave of absence or not—your rule will not violate the law.

In contrast, if you enforce that policy only against employees who are absent for FMLA, medical, or disability-related reasons, you expose your company to potential liability for a discrimination or retaliation claim. 

Job Requirements

If you prefer not to enforce such a broad rule, you’ll need to compare the essential job requirements of the two employment positions, and determine whether your worker’s FMLA leave is consistent with working at one, and being absent from the other.

Let’s say your employee’s regular full-time position typically requires a 50-hour week, is very fast-paced, involves high-stakes, stressful decision-making, and requires that they supervise a team of others.

Maybe they are the head nurse in a busy hospital emergency room. Their therapist has certified that they needs 12 weeks of FMLA for mental health reasons.

An employer is not required to grant FMLA when it’s based on fraudulent reasons. 

That same employee might be able to work part-time as an elementary school nurse while on FMLA leave. That moonlighting job requires short hours with significantly less stress.

On the other hand, if your employee takes a leave of absence from their machinist position in order to work as a foreman on a construction site, you may have a valid objection.

Connecticut FMLA medical certification should detail the employee’s limitations, and those limitations should relate directly to the job from which they are absent.

An employer is not required to grant FMLA when it’s based on fraudulent reasons. 

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HR problems or issues? Email or call CBIA’s Diane Mokriski at the HR Hotline (860.244.1900). The HR Hotline is a free service for CBIA member companies and is intended to provide general information and does not constitute legal advice. Please consult with legal professionals for specific guidance for your specific situation.