Can I Work Part-Time While on FMLA?

Blog

The information in this article is current as of February 9, 2022. It is not intended as legal advice.

As an employee, no matter where you work in the United States, your job is protected by FMLA laws should you need to take a leave. The Family and Medical Leave Act or FMLA allows workers to take time off for various medically related issues, and their job remains secure.

What if you have a second job that you don’t use FMLA to take time off from? Are you wondering, can I work part-time while on FMLA from my primary place of employment? The answer is maybe. It will depend on the policies written by your employer related to moonlighting employment or secondary employment.

Read on to learn more about FMLA rules related to FMLA leave and part-time jobs simultaneously.

What Is FMLA?

FMLA is an act from the federal government through the US Department of Labor. It allows an eligible employee to take time off from work, specifically up to 12 weeks, for medically related issues.

FMLA laws also protect military service members. FMLA can be used for military deployments of their family members.

Further, the FMLA law requires an employer to retain their health care benefits while out on FMLA. You’re also guaranteed to return to work in your same job or one equivalent to it.

A military service member could also take up to 26 weeks of FMLA leave in a single 12-month period. In addition, if they have a covered family member who’s been seriously injured in the line of duty, they can use FMLA time to provide care.

Many states have added bills related to FMLA to their laws too. Let’s take a closer look at some questions related to FMLA.

Which Employers Are Required to Offer FMLA?

Various rules apply to those who must offer FMLA to their employees.

All local, state and federal employers must offer FMLA to employees, including local schools.

Private companies that employ 50 or more employees must also provide FMLA coverage. The caveat is that the employees must have worked at least 20 weeks during the current calendar year or the previous one.

Who Is Eligible for FMLA?

You can’t start working for an employer and then suddenly request FMLA a few weeks later. There are some eligibility rules for coverage under FMLA.

Eligibility requirements include:

The employee must have worked 1,250 hours during the 12 months before they start their leave
Being employed by a covered employer
Work from a location that has the 50 or more employees required by FMLA rules
The employee must have worked for the employer for at least 12 months

The 12 months don’t have to be consecutive. But generally, the rules related to FMLA go back about seven years of the employee’s history.

There are some special rules related to military service members and airline flight crews whose work hours are calculated differently.

What Qualifies Taking an FMLA Leave?

You might wonder what reasons you can take an FMLA leave. The following qualifies you for an FMLA leave for 12 months:

Birth of a child
Adoption or foster care of a child
Your serious health issue
Caring for an immediate family member for a severe illness

There are also several contingencies to care for active duty service members who need care.

Now that you have a better understanding of the rules related to FMLA, let’s get to the question of working at a part-time job while on FMLA from another employer.

What Does the Law Say?

The FMLA law says that an employer can’t force you to work if you’re out on an FMLA leave.

In 2018, the case of D’Onofrio v. Vacation Publications, Inc. created benchmark legislation related to work while out of FMLA. Understanding what happened, in this case, will help you better understand the rules related to part-time jobs while on FMLA.

The plaintiff, D’Onofrio’s husband, was in a severe car accident. She requested medical leave from her employer to care for her husband.

The defendant in the case replied to her request by offering to let her work part-time from home. So, she could not work and remain on FMLA or still use FMLA and work part-time from home to make some commissions.

She opted to work part-time from home during the FMLA leave. However, the defendant subsequently reverted her to full-time leave because she wasn’t responding to customers’ needs.

What resulted was one party suing the other and then countersuing. A lengthy legal battle ensued. The plaintiff alleged that her employer interfered with her FMLA. The employer found out she had started a competing business.

The court initially sided with the employer, saying they offered the option and opted to work part-time. The court said the employer did not interfere with her FMLA because they gave her a choice.

What followed were some guidelines for work while on FMLA. If you opt, for example, to work part-time for the employer granting the FMLA, they need to extend the potential 12 weeks of FMLA because you’ll be working for them part of the time.

It also spelled out the expectations for employers related to FMLA and their employees.

FMLA Moonlighting Policies

Most employers might feel frustrated with an employee who uses a leave from them yet continues to work for someone else part-time.

So, did the case address this FMLA moonlighting? What does FMLA law say about this from an employer’s perspective?

An employer who finds out that their employee is on FMLA but working for someone else may wonder if the request for leave was on the up and up.

First, suppose an employee came to an employer seeking FMLA leave and provided false information to get the leave. In that case, they are not protected under FMLA leave protection or medical care benefits.

Simply put, you can’t lie to get an FMLA to leave, whether you have another job or not. In addition, the law says that employers can discipline employees if they find they’ve applied for leave under pretenses.

But let’s go further with this idea of working for someone else while on FMLA leave. Again, the employer may feel this is wrong and isn’t allowed.

However, FMLA regulations don’t necessarily follow that logic.

She opted to work part-time from home during the FMLA leave. However, the defendant subsequently reverted her to full-time leave because she wasn’t responding to customers’ needs.

The court initially sided with the employer, saying they offered the option and opted to work part-time. The court said the employer did not interfere with her FMLA because they gave her a choice.

Employer Moonlight Policy

So, while an employer might be less than pleased to find that an employee is out on FMLA but working for someone else, it isn’t forbidden.

The exception is unless they have unilaterally prohibited outside employment from their employees.

Let’s explain this another way. An employer can only take punitive action against an employee for working another job if they specifically state it’s not allowed.

They couldn’t opt to discipline an employee who was out on FMLA because they had another job but did not address the other employees who do have another job.

An employer cannot create a policy that says you can’t work another job while on FMLA. They could, however, have a policy that says you can’t work another job, considered moonlighting, while you work for us.

In effect, the employer could only discipline an employee for moonlighting if they expressly prohibit it. After that, whether you’re on FMLA or not wouldn’t matter.

Working While on FMLA

Let’s look at this from an employee side of things.

Can you work a part-time job while out on FMLA from another employer? Yes, you can, unless your employer prohibits other outside employment.

The employer can’t write an employee policy that says no employee can work other jobs while on FMLA. They can, however, write a policy that prohibits one of their employees from working at another job.

So, if you’re out on an FMLA leave and want to seek a part-time job while on leave, you need to know your employer’s policy for moonlighting. Do they allow other employment?

The simple truth is that many people need multiple jobs to make ends meet. In today’s economy, employers are desperate for workers.

Ask your employer directly if they have a policy that prohibits you from working more than one job.

If you have a family member in need and you’re out on FMLA to care for them, you may need another job to pay medical bills or make the rent.

Can I Work Part-Time While on FMLA? What You Need to Know

The answer to can I work part-time while on FMLA is a sound maybe. But, first, you need to understand the moonlighting rules for your primary employer.

Suppose the employer doesn’t explicitly prohibit a second part-time job for any reason. In that case, they can’t deny you from working it while on the FMLA with them.

FMLA is an important government program allowing your job to be secure. But, at the same time, you’re out sick for yourself or a family member.

There are many more government programs available to assist low-income households. Be sure to visit our blog page for more information on programs that could assist you if you need help.

Save Money on Your Wireless Phone Service

If you qualify for federal benefits, you may also qualify for Lifeline service. Lifeline is a federal benefit program that allows low-income consumers to receive free or heavily discounted communication services. Click here to find out more and apply for this valuable benefit.