Sometimes, but like most things in HR, it depends on the circumstances.
An employee can choose to take intermittent leave, in which they have a reduced schedule/hours for a period of time to deal with a personal or family health issue, or bond with a child. For example, an employee who works 40 hours a week may choose to go down to 20 to care for a sick child. In this case, though, only those 20 hours per week could be counted toward one’s FMLA allotment. So if an employee worked this schedule for 12 weeks, they would only have used 6 weeks of the FMLA time they qualify for and would have 6 weeks left.
If an employee requests intermittent leave for their own health issue, it is important for the employer to obtain a physician certification that states the employee is physically able to complete their job duties and work the number of hours they are requesting too. If the employee’s physician states that working would be detrimental to the employee’s health, an employer should not agree to an intermittent leave schedule.
What if you hear that an employee out on FMLA is working a part-time job elsewhere? It’s going to depend on whether or not you have a policy that prohibits that activity while on FMLA. Employers are limited on how much they can regulate off-duty behavior, though it is allowed for an employer to have a policy that prohibits other employment if an employee is on an approved FMLA absence. This is a commonly missed part of an FMLA policy but it can also be hard to enforce.
Keep in mind though that under no circumstances is an employer allowed to require an employee to work while out on FMLA. Employers may contact employees out on FMLA on a sporadic basis if there is a need, but anything else should be saved for when the employee returns to work. Proper planning before an employee goes out on leave (if possible), and clearly defined SOP’s can help ensure that your business can continue to run smoothly even in a key employee’s absence.