December 2015

Q&A: Moonlighting while on family and medical leave

Q: Can an employee work another job while on family and medical leave?
 
A: The Family and Medical Leave Act (FMLA) does not prohibit an employee from working a second job (i.e., moonlighting) while on leave from the district. However, federal regulations state that if an employer has a uniformly applied policy prohibiting outside employment, it may continue to apply the policy to an employee on family and medical leave (FML) (825.216(e)).
 
Provisions regarding nonschool employment are addressed in Policy DBD(LOCAL)—Employment Requirements and Restrictions: Conflict of Interest. If this policy states that an employee cannot work while on approved leave, you can apply this restriction to FML leave.
 
If the policy uses typical language that only requires an employee to disclose any outside employment that creates a potential conflict of interest with assigned duties and responsibilities, the district cannot restrict an employee from working another job while on FML unless the leave was fraudulently obtained. Thus, an employee that meets the criteria for taking FML may take leave and work a second job if he or she is medically able. If the leave is to take care of a family member, then the employee could meet the caregiver duties for a portion of the day and be available to work an outside job at night.