No. Working a second job isn’t prohibited by the FMLA, but a uniformly applied policy prohibiting outside employment while on periods of leave can be applied to FMLA leave, says employment law attorney Mark Jeffries (mark.jeffries@steptoe-johnson.com) of the firm Steptoe & Johnson PLLC.

But even if you had such a policy, you couldn’t request a return from leave. Instead, you’d have grounds to discipline the employee for violating the policy.

Still, an employee working a second job while on FMLA leave can be evidence the employee is abusing FMLA leave. For example, if an employee is taking leave for a back condition but is discovered working a second job requiring heavy lifting.

Working a second job while on FMLA is not necessarily fraud, explains HR Director Tina Hamel.

The second job may not involve the same kinds of duties as the job the employee performs for you, and the employee’s condition may not keep them from performing the second job’s duties.

Per 29 CFR § 825.216(e), if employers have a uniformly applied written policy that prohibits outside employment, then employers can also restrict outside employment while an employee is on FMLA leave. Such policies should include a provision stating that policy violations may result in immediate termination of both the leave of absence (including FMLA leave) and employment.

Without such a formal, written policy, employers may not discipline or discharge an employee simply because they are working a second job (unless the employee is performing duties that the FMLA certification says they cannot do).

The essential duties of the two jobs may be very different, and the provider may keep an employee out of work from only one of the positions, says Director of Benefits Laura Miller. The best practice is to include a job description or essential duty checklist for the provider to review while completing the fitness for duty form/return to work form.

I’d have a conversation with the employee to gather more information and see how they’re doing, says HR Manager Kim Schrader.

You cannot pressure employees to return to work earlier than planned. During the conversation ask about restrictions or limitations the employee has while noting the fact they are working at a second job. Maybe it’s a time limitation. Let the employee know you may be able to make accommodations for them until they can return to full duty.

Also, let them know FMLA can be taken intermittently. Employees do not always know they do not have to exhaust all their time in one period. Find out what the employee needs, and see if you can provide accommodations.