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Moonlighting While On FMLA Leave: How Employers Can Protect Themselves

On Wednesday, March 26, 2020, President Donald Trump signed an emergency bill to expand the Family and Medical Leave Act (FMLA) as part of the Families First Coronavirus Response Act. This bill takes effect on April 1, 2020, and is set to expire on December 31, 2020. However, as the FMLA is expanded, employers may be asking themselves how to address a situation where an employee takes FMLA leave and then takes other employment while on leave. This phenomenon is known as “moonlighting” and is contemplated by the plain text of the FMLA.

FMLA regulation 825.216(e) states: “If the employer has a uniformly-applied policy governing outside or supplemental employment, such a policy may continue to apply to an employee while on FMLA leave. An employer who does not have such a policy could not deny benefits to which an employee is entitled under FMLA on this basis unless the FMLA leave was fraudulently obtained as in paragraph (d) of this section.” In short, if an employer wants to prohibit an employee from working a second job and tighten up FMLA compliance, it is critical that the employer maintain a uniformly-applied no-moonlighting policy that prohibits work while on FMLA leave and any other form of leave. Additionally, the policy should be distributed and available to all employees, and they should be reminded of it when their leave begins.

This is only a small breakdown of the concerns that an employer may have in response to the COVID-19 pandemic. If you have questions or concerns regarding any issue that your business may be facing, Flaherty stands ready to assist you. For more information, please contact Chris Brumley at 304.347.4254 cbrumley@flahertylegal.com or Michael Secret at 304.225.3055 msecret@flahertylegal.com.