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Employer Can Give Employee Option to Work During FMLA Leave

    Client Alerts
  • May 17, 2018

The Family and Medical Leave Act gives eligible employees an entitlement of up to 12 weeks of job-protected leave. The employer cannot require the employee to work during this time, and insistence by the employer that the employee provide work services while on leave may result in a FMLA interference claim. What happens, however, if the employer provides the employee requesting leave the option of working part-time? A recent decision from the Fifth Circuit Court of Appeals indicates that providing this choice does not violate the FMLA.
In D’Onofrio v. Vacation Publications, Inc., the plaintiff requested FMLA leave to care for her husband, who had been involved in a serious automobile accident. In response to this request, the employer gave the plaintiff the option of either going on leave, or working part-time from home, which would allow her to continue receiving some commission income. She chose the latter option, but the employer converted her to full-time leave after it determined that she was not adequately responding to customer inquiries. The parties became involved in a protracted dispute when the employer discovered that during leave, the plaintiff had started a competing business. As part of their subsequent claims against one another, the plaintiff alleged that her employer had interfered with her FMLA rights by requiring her to work while on leave.
The Fifth Circuit affirmed summary judgment for the employer on this part of the claims. The court noted that the part-time work alternative was optional, and that the plaintiff was given the choice of total leave from work. As such, this choice did not interfere with her FMLA rights. So long as working while on leave is not a condition of continuing employment, providing this option does not violate the FMLA.
Although not an issue in this case, employers would need to carefully account for the FMLA leave entitlement used by an employee who works part-time during FMLA leave. Time spent working should not be counted toward the 12-week FMLA entitlement. Therefore, by providing the option of working part-time, the employer can in essence extend the employee’s date of return by the time spent working while on leave.