Accepting a New Job While You’re Out on FMLA

Sep 6 2023

Josh Goodbaum: Hi, Amanda.

Amanda DeMatteis: Hey, Josh. What are we going to chat about today?

Goodbaum: I want to talk about the FMLA — an important topic in employment law — and in particular, about an employee who is out on FMLA, has Family and Medical Leave Act leave, and finds another job. And then that employees wants to quit their job and go take that other job while they’re still on FMLA. Can they do that?

DeMatteis: Easy answer: Yes, they can, as long as they do not have an employment contract in place that dictates the length of their employment, the term of their employment, or what have you. Otherwise, without an employment contract, you are an employee at-will, and you can end your employment relationship with your employer any time you want for whatever reason you want.

So, if you were out on FMLA and, while you were out, you decided to look for another job and found something that may be better suited for you, there’s nothing prohibiting you from giving your notice to your employer and moving on to a subsequent employer and starting over as you see fit.

Goodbaum: Okay. But what if my old employer says, “Hey, wait a minute, you told us you needed to be on FMLA because you couldn’t work, and now it turns out you can work. In fact, you’re taking another job.” Isn’t that FMLA fraud? Do employees need to be concerned about that?

DeMatteis: We always want to be concerned about FMLA fraud because, certainly, we don’t want to see any Connecticut employees being accused of fraudulent activity as it relates to the FMLA. Not a good thing, right? But in this particular circumstance, this isn’t FMLA fraud at all.

Remember, you can take FMLA for your own serious health condition. You can also take FMLA for the serious health condition of an immediate family member. So in that instance, you’d be completely capable of performing the essential functions of your job and working. But at the current time, there may be a family member that you’re caring for and your time is better served caring for that family member than it is going to work.

So when you’re out on FMLA, what you’re saying is not “I cannot perform my job,” right? That’s not one of the things that’s required to take FMLA leave. To take FMLA leave, you or your family member just need to have a serious health condition; it doesn’t need to prohibit you from working. Maybe you have FMLA because you have a 50 lb. lifting restriction, and you’re a nurse and you need to be able to move patients. Well, you could perform a job function, but you can’t lift 50 lbs. and you have to lift 50 lbs. to perform your job as a nurse, right? I could give you countless examples of this.

So if the new job also requires you to lift 50 lbs., then you might have some difficulty, right? Because it would then appear like, “Well, wait a minute. When you were working for Employer A, you couldn’t lift 50 lbs. Therefore, you were out on FMLA. Now, all of a sudden, you’re going to work for Employer B with that same 50 lb. lifting restriction, but you’d be required to lift 50 lbs. there. Why could you do it for Employer B when you couldn’t do it for Employer A?” And that’s a reasonable question.

So you always want to make sure you’re not doing anything that violates the restrictions that your doctor has put in place, right? Anything that your employer has relied upon to grant your FMLA – you want to make sure you’re abiding by that, and you’re following it to a T. As long as you’re doing that, otherwise, you can do whatever you’d like.

Goodbaum: Thanks for that guidance, Amanda. Really great. And thank you all for watching. We’ll see you soon.

Share this Post

amanda dematteis speaking on accepting a job while on fmla leave

About the Author

Garrison, Levin-Epstein, Fitzgerald & Pirrotti, P.C.

Advocating for Employees
since 1977

Best Lawyers

Let Us Review Your Case

    We will respond to your message promptly. Although we will keep your message strictly confidential, please note that contacting us does not create an attorney-client relationship.

    Client Experiences

    During a very difficult employment situation, I was referred to Joe Garrison. Recognizing the volatile and time sensitive nature of my employment situation, Mr. Garrison met with me immediately (on the weekend no less). He listened to the details of my case, was able to think through possible creative solutions to offer the employer, and was responsive to my myriad of questions. He understood my concerns about litigation versus settlement, and he worked to find the best resolution possible. I am grateful to have had his support at a very difficult time. —J.C., New Haven, CT

    You will never meet a more knowledgeable and compassionate professional than Steve Fitzgerald. My employment situation was very complex, and Attorney Fitzgerald kept me focused while remaining extremely adept and “thinking on his feet.” Should the need present itself again, I would never seek anyone else’s counsel regarding employment issues. I cannot recommend him highly enough. — J.R., New Haven, CT

    Nina Pirrotti provided outstanding legal advice and was trustworthy, dependable, and responsive. From the start, I was confident that her knowledge and experience would obtain favorable results. On a more personal note, I enjoyed working with her and her staff and felt I was included in every part of the process. The dedication, concern, and interest in me as a client was greatly appreciated, and Nina has earned my highest recommendation. — J.H., Monroe, CT

    I recently found myself in need of a lawyer in handling a dispute with my former employer. I was fortunate to retain Josh Goodbaum as my legal counsel. His legal skills knowledge and professionalism shone through in every step of the process resulting in a very positive result. I highly recommend Josh if you find yourself in need of legal counsel. — S.R., Guilford, CT

    When I go to a lawyer for advice, I am usually anxious, particularly the first meeting. Amanda DeMatteis was clear in describing my options and immediately set me at ease. Realistic assessment is important, and Amanda was clear as to how to set up the case and the direction she felt we should go. I had total confidence in her abilities and knew I was being well represented against a large corporation. More importantly, we were successful! —N.M., Haddam, CT

    Advocating for Employees since 1977

    American Law Institute Super Lawyers American College of Trial Lawyers Best Lawyers The College of Labor and Employment Lawyers
    Back to Top
    (203) 815-1716