An employee is on a leave of absence for family or medical reasons, and you ask them to take care of a few things at the office. Or maybe they’ve offered to handle some tasks voluntarily. But is working while on a leave of absence legal? And what if they continue to work a second job while on a leave of absence from your organization?
Yes, it’s legal to perform some types of work while on a leave of absence — but only in accordance with strict guidelines under federal law.
Here’s everything you need to know about working while on leave of absence, and how to communicate with your employee about their job without violating their rights.
Working While on a Leave of Absence: Is It Allowed?
In this article, we’ll primarily talk about job-protected leave under the Family and Medical Leave Act (FMLA). This federal law provides up to 12 weeks of unpaid leave to eligible employees who request leave for any the following reasons:
- To care for an ill or injured family member
- To treat their own serious health condition
- To bond with a new child by birth, adoption, or foster care
- To handle certain responsibilities related to military service
Under FMLA, employees can take up to 12 weeks of leave in a 12-month period. Some types of leave may also be covered by state law or the Americans with Disabilities Act (ADA), each of which have their own entitlements and eligibility requirements.
According to the Department of Labor, employers are “prohibited from interfering with, restraining, or denying the exercise of … any FMLA right” and from “discouraging an employee from using FMLA leave.” In other words, employees can’t be required to perform work while on leave in order to retain their employment.
But there are some situations where employees can engage in work while on leave. Let’s take a closer look at what this means in practice.
Communicating With an Employee on a Leave of Absence
Several court rulings have established that employers can make certain basic requests while an employee is on leave. This might include things like asking for documents or passwords so that other employees can access necessary work materials.
The important thing is that the employee isn’t asked to perform work duties. They shouldn’t be expected to come into the office, answer phone calls, or respond to emails 24/7 — even if the leave period is paid.
That said, the employee isn’t allowed to entirely ignore messages from their employer, and they should send regular updates on plans to return to work.
Voluntarily Working While on a Leave of Absence
As long as they aren’t coerced, there’s nothing stopping an employee from voluntarily working while on leave of absence. An employee might choose to log into their work accounts occasionally so they don’t fall behind, or continue to take meetings with an important client rather than passing on the responsibility to other employees.
The employer can even reach out to offer this work — but they should be very clear, in writing, that the acceptance is optional and employment isn’t contingent on it.
If the employee’s medical condition permits them to perform some work, they may be a candidate for a reduced leave schedule or intermittent leave.
Working a Second Job While on a Leave of Absence
Another scenario is that the employee continues to perform another job, or takes on a second job, while on FMLA leave. If the employee is working while on a medical leave of absence, then this might seem like a clear case of FMLA fraud.
But before jumping to conclusions, it’s important to consider the most likely explanation: that the second job is less physically demanding than their primary job, and their health care provider has OK’d it.
FMLA doesn’t require an employee to take leave from all of their jobs at once, and they can continue to work a second job if their medical condition allows it. Employers can only prohibit employees from working a second job if they have “a uniformly-applied policy governing outside or supplemental employment.”
If you suspect that an employee obtained FMLA leave fraudulently, you can request an explanation from their healthcare provider that shows why they’re able to perform one set of job duties but not the other.
Guidelines for Working on a Leave of Absence
In order to honor your employees’ rights and meet your obligations under employment law, follow these best practices regarding work on a leave of absence:
1. Update your employee handbook.
First, set out clear employee leave policies in your employee handbook. If you don’t want employees to work a second job while on a leave of absence, this must be a uniform company policy — not one that only applies to FMLA leave.
Employees who take personal leave or paid time off (PTO) may not have the same job protections as those who qualify for FMLA, but you should still respect their sick leave or vacation time and keep work requests to a minimum.
2. Check in with employees who are on leave.
Continuous communication with an employee who’s on leave may violate their rights, but you’re allowed to ask for frequent updates. Employees should give you notice of their intent to return to work so you can begin the reinstatement process.
Some types of leave, such as parental leave, may last for a specific period of time (e.g., 12 workweeks) but others may be more open-ended. If an employee is on a medical leave of absence and isn’t sure when they’ll return to work, you can ask them for a recertification of their condition “no more often than every 30 days.”
3. Make sure any work performed is voluntary.
It’s natural that some work-related issues may come up while an employee is on leave, and there’s nothing stopping an employee from working if they so choose. But under no circumstances should a promotion, health insurance, or employee benefits program be conditional on an employee working while on leave of absence.
Ensure that any communication about working while on leave specifies that the work is voluntary, and that the employee can decline it without risking their job.
4. Track FMLA leave accurately.
Tracking FMLA leave is important, because it determines where your responsibilities as a covered employer begin and end. After an employee’s 12 weeks of leave are up, they no longer qualify for FMLA protections and can lose their job if they refuse to return to work when the designated leave period ends.
That said, employees who have developed a disability while on FMLA leave may qualify for additional leave as a reasonable accommodation under the ADA.
Know Your Leave of Absence Obligations
When an employee takes an extended leave of absence, it can be tempting to check in with them often about minor work matters. But some requests could be an infringement of their leave entitlements. If an employee agrees to work while on a leave of absence, they must do so voluntarily and not as a condition of employment.
By tracking FMLA leave with an LoA management system, you’ll be able to see how much leave each employee has remaining, and how frequently you can ask them for status updates or recertifications.
Pulpstream makes it easy to automate human resources tasks with our cloud-based leave management system. You can track FMLA leave, accrued leave, military leave, and more. Request a demo today to get started!
