Can you offer employees an option to work on FMLA leave? Court says …

If an employee is still able to work but requests FMLA leave (say, to care for a spouse), is it interference to offer them the option to continue working while taking leave?
That question was at the center of a recent FMLA lawsuit.
The answer, according to a federal appeals court, is “no.”
And employers everywhere will want to take note of why the court ruled that way.

Employee had two choices

The court tackled this issue after Vacations To Go sales rep Karen D’Onofrio sued the employer, claiming it interfered with her FMLA leave by asking her if she wanted to work while on leave.
D’Onofrio had requested FMLA leave to care for her sick husband. She sold ocean cruises and had ongoing contact with her customers.
After Vacations To Go approved her leave, it asked that D’Onofrio choose between two options:

  • She could go on unpaid leave, or
  • While taking leave, log in remotely a few times per week and continue to service her existing accounts.

D’Onofrio chose the second option. But when her employment came to an end at Vacations To Go, she filed the interference lawsuit.
Result: The court then threw out her claim.
It said the FMLA permits “voluntary and uncoerced acceptance of work by employees on medical leave, so long as acceptance is not a condition of employment.”
In other words, because her decision to work was completely voluntary, there was no interference.
Cite: D’Onofrio v. Vacation Publications Inc., U.S. Crt. of App. 5th Cir., No. 16-20628, 4/23/18.