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Taking FMLA Leave & Working a Second Job Q&A

If an employee takes FMLA leave because of a serious health condition
that makes her unable to perform her job duties, can she continue
working a second job? The answer is yes, unless your organization
specifically prohibits it.
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Q: We have an employee who is taking FMLA leave for a serious
health condition. She provided the required medical certification showing
that her condition makes her unable to perform her job duties. These
duties include standing for long periods of time and regularly lifting 20
pounds or more. We recently found out that she is continuing to work
her part-time second job as a call center employee at another company.
Can we revoke her FMLA leave or prohibit her from working the second
job while she is on FMLA leave from us?

A: If you have a policy specifically prohibiting employees from
working a second job while on Family and Medical Leave Act (FMLA)
leave, you may enforce that policy for this employee. However, if you do
not address this issue in your policies and the employee has met the
FMLA criteria for leave, you should allow her to continue to take the
leave and work the second job if she is medically able to do so. (Check
out Leaves of Absence model policy, including FMLA, with 85 pages of
supporting information and forms

The FMLA does not prohibit an employee from working a second job and
taking FMLA leave in a first job as long as the employee meets the
FMLA standard for leave from your job. So, for example, if she is eligible
for FMLA leave and has provided the required medical certification to
show she has a serious health condition and is unable to perform her job
duties with your organization, she should be allowed to take the FMLA
leave. An employee’s ability to work a second job does not preclude her
right to claim that she is unable to work her primary job if she can show
she has a “serious health condition” under the FMLA.

To illustrate this principle, the court in Stekloff v. St. John’s Mercy Health
Sys., 218 F.3d 858 (8th Cir. 2000) determined that the employee only
had to show that she was unable to work in her current job because of a
serious health condition in order to qualify for FMLA leave. The fact that
she was able to attend orientation for another part-time position within
one day of taking FMLA leave was not material to whether she was able
to perform the essential functions of her current job.
Of course, if the employee’s ability to work a second job does in fact call
into question her need for your FMLA leave, i.e., raises the issue of
whether she really is unable to perform her job duties because of a
serious health condition, you can then take action based on this
concern. For example, you could require her to provide a second and
even a third medical certification to show the need for your leave.

Note that the FMLA regulations, found in 29 C.F.R. §825.216(e), do
allow you to apply a policy restricting outside employment to employees
who take FMLA leave, as long as the policy is applied uniformly. So, for
example, in Pharakhone v. Nissan N. Am., Inc., 324 F.3d 405 (6th Cir.
2003), the court determined that the employer did not fire its employee
because he exercised his right to FMLA leave but because he elected to
work at his wife’s restaurant during leave for the birth of their child. The
company had a documented policy prohibiting “unauthorized work for
personal gain while on leave” and his supervisor advised him that he was
not permitted to work there during his leave.

Accordingly, you can implement a policy prohibiting an employee from
working a second job during an FMLA leave, but you must have the
policy in place prior to the employee taking leave and you must apply it
consistently for all employees. For example, the following language is
from our Personnel Policy Manual System comprehensive Leaves of
Absence policy: “Employees who are on an approved leave of absence
may not engage in any form of self-employment or perform work for any
other employer during that leave, except when the leave is for military or
public service or when the employment has been approved by the
Company under its Outside Employment policy and the employee’s
reason for leave does not preclude the outside employment.” (Check out
Leaves of Absence model policy, including FMLA, with 85 pages of
supporting information and forms
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Subscribers to the Personnel Policy Manual and HR Policy Answers on
CD can find more information on second jobs and the FMLA in Outside
Employment, Chapter 208, note 13, and Leaves of Absence, Chapter
703, note 43. For sample policy language prohibiting working a second
job during FMLA leave, see Leaves of Absence, Chapter 703, Comment

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