May an employer fire an employee for moonlighting while on Family and Medical Leave Act (FMLA) leave?
Author: XpertHR Editorial Team
It depends on whether the employee engaged in FMLA fraud or a violation of the employer's policy. An employee who is on approved leave under the FMLA and accepts another employment opportunity or works another job (moonlights) is not automatically considered to have committed FMLA fraud.
FMLA fraud occurs when an employee takes FMLA leave for purposes other than those permitted under the FMLA. For example:
- Working for another employer, performing same or similar duties that the employee's FMLA medical certification form says they are not able to perform; or
- Engaging in off-duty activity, while on FMLA leave for one's own serious health condition, that is inconsistent with the limitations the serious health condition imposes.
If an employer has a uniformly applied no moonlighting policy or a clause prohibiting such conduct in its FMLA policy, then that policy may apply to an employee out on FMLA leave if the employer does not treat the employee on FMLA leave differently than those who are on an equivalent leave status for a non-FMLA-qualifying reason.
Before firing an employee for moonlighting:
- Conduct a thorough documented investigation into the matter; and
- Have an honest and reasonable belief that the employee violated a workplace policy and engaged in FMLA fraud.
While the federal FMLA may permit no moonlighting policies/clauses, there are some jurisdictions that effectively prohibit no moonlighting policies in certain contexts by making it unlawful for an employer to inhibit an employee's lawful off-duty conduct.
If an employer does not have a no moonlighting policy, FMLA benefits may not be denied unless the employer can prove that the FMLA leave was fraudulently obtained.