The decision to pursue a new career opportunity while on a protected leave of absence is complex. The Family and Medical Leave Act (FMLA) grants eligible employees up to 12 weeks of unpaid, job-protected leave for qualifying medical and family reasons. This federal protection provides security during times of personal need, but it creates a sensitive dynamic when an employee considers a career move. Understanding the technical boundaries of this law is the first step for anyone navigating this transition while covered by the FMLA.
Understanding the Scope of FMLA Protection
The FMLA establishes specific criteria for both employees and employers. An employee is eligible if they have worked for a covered employer for at least 12 months and accumulated a minimum of 1,250 hours of service during the 12 months immediately preceding the leave. The employer must employ 50 or more employees within a 75-mile radius of the worksite.
Leave is granted for distinct circumstances, including the birth and care of a newborn child, the placement of a child for adoption or foster care, or to care for an immediate family member with a serious health condition. The FMLA also covers an employee’s own serious health condition that makes them unable to perform the essential functions of their job. During the leave, the employer must maintain the employee’s group health benefits. Upon the conclusion of the leave, the employee is entitled to reinstatement to the same or an equivalent position with similar pay, benefits, and working conditions.
Is Job Searching While on FMLA Legal?
The FMLA does not explicitly prohibit an employee from engaging in a job search or participating in interviews while on approved leave. The core legal principle distinguishes between seeking new employment and performing work inconsistent with the stated reason for the leave. An employee is free to use their time on leave for activities that do not contradict the medical certification that qualified them for the leave.
If the leave is for bonding with a newborn or caring for a family member, simple activities like sending resumes or participating in phone interviews are permissible. These activities do not prevent the employee from fulfilling their caregiving duties. Even if the leave is for the employee’s own serious health condition, minimal tasks such as submitting online applications or conducting remote interviews are generally not considered a violation, provided the activity does not interfere with the employee’s incapacity to perform their current job.
The legal vulnerability arises when job search activities suggest the employee is not truly incapacitated. For instance, if an employee approved for physical incapacitation leave travels extensively for in-person interviews, the employer could argue misuse. The focus remains on whether the employee’s actions are consistent with the medical certification. As long as the job search does not undermine the medical necessity for the leave, the employee has a right to explore other opportunities.
Analyzing Potential Risks and Employer Policy Conflicts
While federal law does not forbid job searching, the practical risks of interviewing while on FMLA are substantial. An employer may interpret interviewing as fraudulent use of the leave, especially if the medical certification states the employee is unable to perform their current job functions. This perception of misuse can lead to termination.
Employers often rely on the “honest belief” defense in termination cases. This defense asserts that an employer is not liable for an FMLA violation if they demonstrate a reasonable, good-faith belief that the employee was misusing their leave. For example, if an employer gathers evidence, such as social media posts or co-worker reports, that contradicts the employee’s stated inability to work, they can use this as a basis for believing fraud occurred.
The job search can also violate company policies uniformly applied to all employees, regardless of FMLA status. Many companies prohibit “moonlighting” or “outside employment.” Although interviewing is not paid employment, an employer might stretch the interpretation of such a policy to cover the time and effort spent in the job search process, potentially leading to disciplinary action. The greatest exposure comes from any action, like a demanding on-site interview, that contradicts the medical certification.
Practical Strategies for Interviewing Discreetly
Conducting a job search while on protected leave requires a cautious and discreet approach to minimize the risk of employer detection and avoid the appearance of misuse. Employees should create a firewall between their current employment and their search activities.
Maintaining Discretion
Use a dedicated personal email address and cell phone number for all communications with recruiters and prospective employers. This ensures no correspondence is accidentally routed through company-provided devices or networks.
Schedule interviews outside of typical business hours. Request early morning, evening, or weekend slots, especially for virtual interviews, to avoid the appearance of performing job-related activities during normal work hours.
For reference checks, explicitly request that the prospective employer not contact the current supervisor or human resources department until an offer has been accepted. Use former supervisors or professional colleagues instead.
When asked about the current employment status or gap, offer a brief, vague, and non-medical explanation. Acceptable phrasing includes stating the employee is on a “personal leave of absence” or took time for “health and recovery reasons.” This maintains confidentiality without disclosing specific FMLA status or diagnosis.
Managing the Transition After Securing a New Role
Once a new job offer is secured, the employee must carefully manage the transition to mitigate potential financial consequences related to the FMLA. Accepting a new position constitutes an intent not to return to the former employer, which triggers a specific financial clause in FMLA regulations.
The most significant financial risk is the former employer’s right to recover the cost of health insurance premiums paid during the unpaid portion of the FMLA leave. This recovery is permissible if the employee fails to return to work upon the exhaustion of the leave. However, the employer cannot recover these costs if the failure to return is due to the continuation or recurrence of a serious health condition that still qualifies for FMLA leave, or other circumstances beyond the employee’s control. An employee who accepts a new job and resigns immediately is not covered by these exceptions and should expect a demand for premium recoupment.
To make a clean break, the employee should submit a clear resignation notice after accepting the new role, ideally before the FMLA leave officially expires. Returning to work for a brief period is often not enough to negate the employer’s right to recover premiums. The employee must be prepared to negotiate payment or accept the debt, as the former employer is generally prohibited from withholding a final paycheck to cover these costs.