by Andy Rodman
One of employers’ most common complaints about administering Family and Medical Leave Act (FMLA) leave is employees’ tendency to abuse intermittent leave. What if you find out that an employee out on FMLA leave for 10 weeks to care for her spouse, who has a serious health condition, was seen working for another company in a local retail store? Most HR pros would consider that fraud. But is there anything you can do? 
Moonlighting: not prohibited, but not always an employee right
That question raises a “moonlighting” issue—whether an employee on FMLA leave may work for another employer during her leave. While many employers may, from an emotional standpoint, regard moonlighting during leave as a form of FMLA abuse, the FMLA does not prohibit moonlighting in all circumstances. In fact, the regulations expressly state that if an employer has a uniformly applied policy governing outside or supplemental employment, it may continue to apply the policy to an employee on FMLA leave. Conversely, an employer that doesn’t have such a uniformly applied policy “may not deny benefits to which an employee is entitled” under the FMLA unless the leave was “fraudulently obtained.”
So, what does that really mean? In a nutshell, you must treat all employees (those on FMLA leave and those not on FMLA leave) similarly when it comes to moonlighting. If you maintain a (preferably written) policy prohibiting outside work in all circumstances or during all periods of approved leave of any type and if you enforce the policy uniformly, you may apply your “no-moonlighting” policy to an employee on FMLA leave. However, if you don’t have a uniformly applied no-moonlighting policy, you may not restrict an employee’s right to work for another employer during FMLA leave unless you can establish that the FMLA leave was fraudulently obtained. With respect to your question, that could mean proving the employee’s spouse doesn’t in fact have a serious health condition.
If you believe that your employee is violating a uniformly applied no-moonlighting policy during her FMLA leave, then it would be prudent to contact her to confirm your understanding of the facts and inform (or remind) her of the policy before taking any action that may affect her FMLA rights. Perhaps your understanding of the facts was mistaken, or perhaps the employee wasn’t aware of the policy (and she will agree to comply with it going forward). Or perhaps the employee is moonlighting during hours that she didn’t work for your company and therefore isn’t abusing her FMLA leave or violating your no-moonlighting policy.
If, after conducting a complete investigation, you determine that the employee violated your uniformly applied no-moonlighting policy or obtained FMLA leave fraudulently, you may be able to take disciplinary action, provided, of course, that discipline is uniformly applied to employees, regardless of whether they’re on FMLA leave. Taking disciplinary action against an employee on FMLA leave is risky, so consult with your attorney in advance.
Need more FMLA help?
FMLA is one of the most complicated federal laws for HR to navigate, and knowing the basics only gets you so far. With new and unusual situations arising, you may feel like you’re making an “educated guess” when it comes to correctly tracking employees’ leave time. The Labor Department is increasing the use of FMLA audits—meaning you are now more likely to be caught and fined if you track leave incorrectly. If you don’t properly track and manage leave, you may also be more likely to discipline an employee for absences that should have been protected—and if that happens, a lawsuit might not be far behind. The BLR webinar Beyond FMLA Basics: How to Handle Complex Tracking and Other Employee Leave Challenges will provide you with clear guidance that goes much beyond the FMLA basics—so you’re well equipped to master your complex compliance obligations. To learn more, go to http://store.hrhero.com/events/audio-conferences-webinars/fmla-111615
Bottom line
Also keep in mind that some states prohibit employers from regulating employees’ lawful off-duty conduct. Such a state law may prevent the implementation of a no-moonlighting policy. Consult with your attorney before implementing any policy against moonlighting.
Andy Rodman is a shareholder and director at the Miami office of Stearns Weaver Miller Weissler Alhadeff & Sitterson, P.A. He may be contacted at arodman@stearnsweaver.com